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29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett
Prof Bradley
Prof Bradley Smith tackles the ambiguities surrounding trust misuse during divorce proceedings.

In his inaugural lecture on 21 February 2024 at the University of the Free State (UFS), Prof Bradley Smith explored the complexities of trust misuse in the context of property disputes during divorce proceedings. Prof Smith is an Extraordinary Professor at the UFS Faculty of Law. Drawing on two decades of judicial evolution in the Supreme Court of Appeal (SCA), Prof Smith highlighted the inconsistencies in the SCA’s treatment of this issue that impedes attempts to curb “divorce planning” by way of a trust and proposed solutions to address them.

One of the core issues he identified is the abuse of trusts, where assets are placed within a family trust to diminish a spouse’s personal estate value while treating the trust property as personal property for personal gain. This is often done in an attempt to evade the financial consequences of divorce. Prof Smith explained that this practice undermines the essence of trust law and that the inconsistent approaches by our courts exacerbate the challenges in dividing property during divorce proceedings in a manner that respects the spouses’ matrimonial property regime.

Navigating challenges: reflections on research and its importance

Prof Smith’s proposal revolves around the development of a consolidated test for piercing the veneer of an abused trust, aiming to enhance legal certainty. He emphasised the necessity of a unified approach. “Utilising this test will ensure uniformity because of its applicability to all marriages out of community of property, irrespective of whether the accrual system is involved,” he said.

His meticulous examination of conflicting judgments was praised by Dr Brand Claassen, head of the Department of Private Law, who described it as “the work of a master craftsman”. Retired Judge of Appeal, Eric Leach, also highlighted its critical importance in clarifying complex legal issues for the public good.

“It is of critical importance and in the public interest for judicial decisions, particularly those of higher courts such as the Supreme Court of Appeal and Constitutional Court, to be subjected to careful and considered analysis and, if needs be, criticism. Prof Smith’s inaugural lecture on combating trust form abuse in the context of matrimonial property claims at divorce, in which he carefully considered and analysed the conflict between several Supreme Court of Appeal judgments, was a valuable and important study on the issue,” said Judge Leach. He added that he hoped Prof Smith’s research would be considered by the SCA in future.

Future directions: advancing discourse and sound legal theory

Looking ahead, Prof Smith envisions further research into the applicability of the consolidated test to marriages in community of property, aiming to address remaining uncertainties that lie at the intersection of matrimonial property and trust law. He emphasised the importance of countering the prevailing “catch-me-if-you-can” attitude in divorce matters, advocating for proactive measures to uphold fairness and justice in matrimonial property disputes.

In conclusion, Prof Smith’s inaugural lecture provided valuable insights into combating trust form abuse within the context of matrimonial property claims at divorce. His proposed solutions and ongoing research efforts signify a commitment to advancing discourse on trust law theory and practice, with the ultimate aim of a sound judicial approach that serves the needs of South African society.

News Archive

Wayde runs 100 m personal best in Slovenia
2017-06-21

Description: Wayde runs 100 m personal best in Slovenia Tags: Wayde runs 100 m personal best in Slovenia

Wayde van Niekerk is in great form leading up to the
World Championships in London in August.
Photo: Charl Devenish

“This also bodes well for my two main distances." This is what Wayde van Niekerk said according to www.iaaf.org, after running a personal best time of 9.94 in the 100 m in Velenje, Slovenia, on 20 June 2017. The Kovsie athlete improved his previous best by 0.04 seconds at the 22nd International Athletics Meeting.

Van Niekerk was referring to the other distances in which he excels – the 200 m and 400 m. The 400 m world record-holder said he was pleased with his latest run: "It's my best time and I'm glad the competition ended the way I wanted it to.”

National 200 m record and world’s fastest in 2017
His feat in the 100 m was his latest success, as he recently became the national record-holder in the 200 m again, and also the fastest man on the planet in this distance in 2017. After he ran a 19.90, the world’s fastest this year, when he won the South African title in Potchefstroom in April, the American Christian Coleman (19.85) improved on that.

However, Van Niekerk ran a 19.84 in the 200 m at the Racers Grand Prix in Kingston, Jamaica, on 11 June 2017. This was 0.06 seconds quicker than his personal best, and 0.03 seconds better than Anaso Jobodwana’s national record of 19.87.

Same pace a second time in a week
It was also the second time in a week that he ran a 19.84 in the 200 m. This after he did it on a temporary built track at the Boost Boston Games on 4 June 2017. The race was run on a straight street course and was therefore not officially recognised as a record.

He seems to be in good shape leading up to his attempt to run a double, his favourite 400 m and the 200 m, at the World Championships in London, England, in August.

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