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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

During 2011: Sport
2011-12-01

Our sports stars set their gaols high and with hard work, dedication a good measure of determination they show that they will not give up until these goals are met. A place in the national team or a medal or award in hand is enough proof that our Kovsie sportsmen and women are serious about their successes on the sports field.

 Description: 2011 Sport_Cricket Tags: 2011 Sport_Cricket  Description: 2011 Sport_Karate Tags: 2011 Sport_Karate  Description: 2011 Sport_Hockey Tags: 2011 Sport_Hockey  Description: 2011 Sport_Netball Tags: 2011 Sport_Netball  Description: 2011 Sport_Rugby Tags: 2011 Sport_Rugby

Some of our stars this year were:

Athletics:

Thuso Mpuang, our Kovsie Sportsman of the year, represented South Africa during the World Athletic Championships in Deague, Korea. He obtained the silver medal in the 200m during the World Student Games in Shenzhen, China and a gold medal as a member of the 4 x 100m relay team.

Janette Siebert represented South Africa during the Southern Africa Championships in Maputo, Mozambique.

Boy Soke represented South Africa during the Africa Cross Country Championships in Cape Town. He also represented South Africa during the World Cross Country Championships in China.

Cricket:

The 21-year-old former Kovsie, Obus Pienaar, who was still playing cricket for our university club until the end of the season (end of March), has been playing abroad for the Irish cricket club Waringstown from the end of April 2011.
We are proud of Obus’ achievements, in particular his contribution to the match against the CIYMS. During this game, Obus hit the highest score ever in the Northern Cricket Unions when he scored 244 runs in only 114 balls. This included 22 sixes and 13 fours. During his innings in this match, Obus also broke the July 2004 record of his compatriot, AB de Villiers of the Proteas.

Hockey:

Lesley Ann George represented the Protea Women’s Hockey Team during the series against China, Belgium and Azerbaijan. She was also a member of the Protea Women’s Hockey Team during the Champs Challenge in Ireland. The team finished fifth.

Nicole de Vries represented the Protea Women’s Hockey Team during the series against China, Belgium and Azerbaijan. She was also a member of the Protea Women’s Hockey Team during the Africa Cup in Bulawayo. The team obtained a gold medal.

Hettie Oosthuizen represented the Protea Women’s Hockey Team during the series against China, Belgium and Azerbaijan.

Izelle Lategan represented the Protea Women’s Hockey Team during the series against China, Belgium and Azerbaijan.

Nicole Kemp was a member of the Protea Women’s Hockey Team during the Africa Cup in Bulawayo. The team obtained a gold medal.

Karate:

Elsabe le Roux was a member of the Protea JKA Shotokan Karate Team that participated in the Africa Zone 6 Championships in Maputo where she obtained a gold and silver medal.

Bruno Schwalbach was a member of the Protea JKA Shotokan Karate Team that participated in the Africa Zone 6 Championships in Maputo where he obtained two gold medals. He was also a member of the Protea JKA Shotokan Karate Team that participated in the Common Wealth Karate Championship in Australia where he obtained one silver and two bronze medals. He was a member of the Protea JKA Shotokan Karate Team that participated in the All Africa Games in Maputo Mozambique where he obtained a bronze medal.

Balungile Nchofe was a member of the Protea JKA Shotokan Karate Team that participated in the Africa Zone 6 Championship in Maputo, where he obtained a gold medal.

Netball:

Kovsies’ netball team has performed well over the past year with, amongst others, the inclusion of players in the SA Universities World-cup Group.

Karla Mostert and Maryka Holtzhausen participated during the World Cup in Singapore in the SPAR SA Protea team.

We are also proud of the eight players who have been included in the SA team. They are Zimari Smit, Sheri Duimpies, Ane Botha, Danique du Toit, Nieke Loubser, Karla Mostert, Fikile Mkhuzangwe and Lauren-lee Christians.

At the SA tournament, Ane Botha was named as the centre-court player of the tournament, whilst Karla Mostert was named as the best defending player. Karla has also been included in the SPAR SA Protea team to the All African Games, which start in Mozambique at the end of August.

Rugby:

Boom Prinsloo and Robert Ebershohn are representing the Springboks in the HSBC Sevens World Series.

Soccer:

Gabisile Hlumbane, our Kovsie Sportswomanof the year, is a member of the Banyana Banyana National Soccer Team. The team obtained a bronze medal at the African Women’s Championships during October 2010, a gold medal at the Unity Cup Hosted during December 2010, a silver medal at the COSAFA Women’s Championship hosted during July 2011 and qualified for the London Olympics in 2012.

Squash:

Paul Rodrigues represented the South African U/ 23 team at the All Africa Squash Championships in Johannesburg.

Triathlon:

Nelmaré Loubser represented the SA Elite Team during the World Championships in Spain.

 

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