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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

Sarah, our own champion
2008-11-05

 
Sarah Shannon at the Paralympic Games in Beijing

 

Sarah Shannon, a second-year student in the Postgraduate Certificate in Education, has been involved in disability sport on national level for the past 12 years. Sarah has cerebral palsy.

In 1996 she participated at the South African National Championships for the physically disabled for the first time, entering for several sporting codes and winning five gold medals. In swimming she participates in the S3 class together with other swimmers that have comparable abilities to hers.

In 1997 she decided to focus on swimming competitively. She participated in her first national championships for swimming that year. After that (1998) she represented South Africa on international level at the International Paralympic Committee’s (IPC) Swimming World Championships in New Zealand where she ended 4th in the 50m backstroke and 7th in both the 50m and 100m freestyle in her class.

In 1999 she represented South Africa in Johannesburg at the 7th All Africa Games and won a silver medal for the 50m freestyle and a bronze medal for the 100m freestyle.

In 2000 she was part of the South African team at the Sydney Paralympic Games where she reached the finals and finished 7th in the 50m backstroke and 8th in the 50m freestyle. Northern-KwaZulu-Natal also awarded her the Junior Sportswoman of the Year award in 2001. In 2002 she participated at the South African Senior National swimming championships for KwaZulu-Natal in the multi-disability category.

In 2005 she completed the Midmar Mile. She also represented South Africa at the world championships for athletes with cerebral palsy in Boston in the United States of America. She won two gold medals for respectively the 50m freestyle and the 50m backstroke and two silver medals in the 100m and 200m freestyle. She was also nominated to represent South Africa as athlete’s representative on the world committee of CPISRA (Cerebral Palsy International Sports and Recreation Association). In this year Sarah also received the KwaZulu-Natal Premier’s Sportswoman with a disability award of the year.

In 2006 she qualified for the IPC world championships but could not attend.

In 2007 she represented South Africa once more at the Visa Paralympic World Cup in Manchester in the United Kingdom where she broke the South African record in the 50m backstroke, finishing 7th in the 50m freestyle and 6th in the 50m backstroke.

She was also part of the very successful Team South Africa to the Paralympic Games in Beijing. She reached the finals in both the 50m backstroke and 50m freestyle. She finished 7th in the 50m freestyle and 6th in the 50m backstroke in personal best times for both events. She has been participating in the able bodied South African National Swimming Championships since 2002. She is currently ranked 2nd in the world for short course items and 11th for the long course items. She is truly our best swimmer in the S3 class.
 

 

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