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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

Three more Kovsie staff members involved in Olympic Games
2012-05-30

 

Dr Derik Coetzee
Photo: Supplied
30 May 2012

The South African men’s hockey team will practice on our Bloemfontein Campus from 28 May to 8 June 2012, and the team count on the assistance of three Kovsies to prepare them for the Olympic Games taking place in London later this year.  

Dr Derik Coetzee, senior lecturer in the Department of Exercise and Sport Science and Head of our High Performance Centre, has been appointed conditioning coach of the team. He will be assisted by Colleen Jones and Riaan Schoeman, also from this department.

The UFS team and Mr Gregg Clark, the team’s coach, will work out a periodisation programme for the team, which will continue until the hockey finals at the Olympic Games. The programme includes the correct exercises, volume, intensity and number of exercise sessions per week.

This is not the first time that Dr Coetzee has assisted sports teams to prepare for important events. In 2007, he was the conditioning coach of the Springbok rugby team that won the World Cup in France. He was also the conditioning coach of the under-21 Springbok team in 2002 that won the Junior World Cup Tournament. 

Dr Coetzee says it is a challenge to ensure that the team performs well at the Olympic Games. “The joy on the faces of the coach and players when they qualified in Japan cannot be described because many people thought they would not qualify.”

With the addition of Dr Coetzee, Ms Jones and Mr Schoeman, a total of six staff members from the UFS will be involved with the Olympic Games and the Paralympic Games. The other three are:

  • Dr Louis Holtzhausen, Head of the university’s Department of Sports and Exercise Medicine, has been selected as team doctor for the more than 300 athletes that will represent South Africa at this year’s Olympic Games (in London).
  • Ms Ebeth Grobbelaar, Assistant Director of the South African Testing Laboratory for Prohibited Substances at the UFS, was invited to be involved in the Drugs Control Centre in the unit against prohibited substances which will test sportsmen and -women during the games.
  • Ms Hetsie Veitch, Head of the Unit for Students with Disabilities, has been invited to be a member of the Classification Panel at the final USA Paralympic athletics trials.

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