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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

Miss Deaf SA inspires UFS teachers with her life story
2009-11-26

Pictured from the left, are: K. Botshelo, Vickey Fourie (Miss Deaf SA) and A. Morake.

Vicki Fourie, Miss Deaf SA 2009 and Miss Deaf HESC, recently visited the University of the Free State to motivate aspiring Foundation Phase teachers by sharing her life story with them.

When Vicki was two years old, her parents found out that she couldn’t speak. Two possible explanations were that she had had an ear infection or speech problems. They took her to a specialist and after a brain scan they found out that Vicki had 97% hearing loss in both ears.

Hearing aids were required and Vicki’s father, Pastor Gerhard Fourie from the Christian Revival Church (CRC) enrolled her in a kindergarten school for deaf children, Carel Du Toit in Cape Town.

However, even though Carel Du Toit’s slogan is ‘Where Deaf Children Learn to Speak’, it was because of her mother’s efforts that Vicki is able to communicate effectively with hearing people today.

Bonita Fourie would sit with her child every single day and teach her how to pronounce words phonetically and how to read lips. It is because of that that Vicki is not dependent on sign language at all.

When she was seven years old, her parents enrolled her in an English A.C.E. school. Even though Vicki’s home language is Afrikaans, her parents decided to go against the norm by placing her in an English school (most deaf/hard of hearing people cannot learn a second language). Today Vicki is fluent in both languages.

“I used to think that my hearing aids are just a normal thing you put on, like using glasses for reading,” she said. “I still think that way. People always come up to me and say, ‘It’s amazing how easily you adapt to hearing people. You have no stumbling blocks or holdbacks.’

“To me it’s interesting because my reaction is always this: ‘God gave me this situation, and I have made the best of it. I’ve overcome it, and therefore I can go forward in life’. We were born not to survive, but to thrive. I detest the attitude of, ‘I’m a victim, so the world owes me something’. The world owes nobody anything! We can be victorious over our own circumstances. It is possible. My name’s meaning is testifies to this: “Vicki” comes from the word “Victory”. I was meant to be victorious, and not a victim.”

Vicki, who is now 20, has achieved so much in life. She did ballet, hip-hop, modern dancing, drama (she even went to America for her dramatic monologue and poetry recitation), and she has published over 70 magazine articles, nationally and internationally. Her dreams are to write books one day, become a TV presenter, and motivate and inspire people all over South Africa through public speaking.

When one hears this story, one cannot help but be surprised by her success. It makes you realize that anything is possible when you see the potential in a child, and then do everything in your power to develop it and draw it out. When you believe in the child that you are educating, that child will sense it and blossom like a flower.

“Courage isn’t a gift, it is a decision,” Vicki said. “There will always be things that try to hold you back. The key to working with any child is to be patient, patient, and patient! Teachers play a huge role in equipping children for the future. It is a big responsibility, but it can be done.”
 

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