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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 Van Niekerk makes sprinting history
2016-03-13

He is the world champion in the 400 m, the South African Sports Star for 2015, and now Kovsie student Wayde van Niekerk has achieved something nobody else has done before.

On 12 March 2016, Van Niekerk became the first athlete in history to run the 100 m under 10 seconds, the 200 m under 20 seconds, and the 400 m under 44 seconds. Van Niekerk achieved this feat, which was confirmed by the IAAF, when he ran a personal best in the 100 m at the Free State Championships in his hometown of Bloemfontein.

His time of 9.98 seconds in the 100 m improved his previous best by 0.47 seconds. Van Niekerk ran his previous best back in 2011 and didn’t compete much in this event during the last couple of years.

“We, as the UFS leadership, are enormously proud of this historic achievement of Wayde, who embodies our values of academic commitment and human decency in every way,” said Prof Jonathan Jansen, Vice-Chancellor and Rector of the University of the Free State (UFS).

He was congratulated by many people on social media over the weekend. AB de Villiers, the Proteas' test and one-day cricket captain, was one of a few well-known people who congratulated Van Niekerk on Twitter.
“@WaydeDreamer don’t know the man, but WOW. Take a bow,” De Villiers tweeted.

A humble Van Niekerk thanked De Villiers and wished him good luck for the upcoming T20 World Cup in India.

The 23-year old Van Niekerk said on his Instagram account that it was a childhood dream to run a sub 10, and expressed his thanks to his supporters.  

On 11 March 2016, Van Niekerk won the 200 m at the Free State Championships in 20.97 seconds. His best in this event is 19.94 seconds.

More articles:

Van Niekerk makes sprinting history in Bloemfontein (IAAF)

UFS community proud of Wayde’s hat trick of awards

Wayde nominated with SA’s best

Wayde one of the Adidas faces for Rio 2016

NBC tells Wayde’s story 

Wayde, Karla crowned as KovsieSport’s best

UFS congratulates Wayde van Niekerk and other students for their national and international

Kovsies Wayde van Niekerk wins gold at the IAAF World Championship

 

 

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