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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

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

UFS researchers receive awards from the NSTF

2008-06-04

The recipients of the two awards are, from the left: Prof. Jan van der Westhuizen, UFS Department of Chemistry, Dr Susan Bonnet, UFS Department of Chemistry, Prof. Thinus van der Merwe, FARMOVS-PAREXEL, Prof. Maryke Labuschagne, UFS Department of Plant Sciences, and Prof. Ken Swart, FARMOVS-PAREXEL.
Photo: Lacea Loader

UFS researchers receive awards from the NSTF

The University of the Free State (UFS) last week received two prestigious awards from the National Science and Technology Forum (NSTF) during its tenth gala-awards ceremony held in Kempton Park.

Prof. Maryke Labuschagne from the Department of Plant Sciences at the UFS was the female recipient of the research capacity-development award over the last ten years. She received the award for her successful mentoring of black researchers and students. The award, sponsored by Eskom, includes a prize of R100 000 which will be used for research purposes.

A team consisting of Prof. Jan van der Westhuizen and Dr Susan Bonnet from the Department of Chemistry at the UFS and Prof. Kenneth Swart and Prof. Thinus van der Merwe from FARMOVS–PAREXEL received the innovation award for an outstanding contribution to science, engineering and technology from either an individual or a team over the last ten years.

Prof. Labuschagne, an expert in the field of plant breeding and food security in Africa, received the award for her contribution to the training and development of black students and researchers in this field. Various black students successfully completed their postgraduate studies under her guidance at the UFS during the past ten years, with positive results.

Research by her South African students has led to a firmly entrenched research relationship between the Agricultural Research Council (ARC) and the UFS, while research by her local and international students has culminated in no less than 82 publications over the last decade.

It has also led to the establishment of collaboration agreements with universities and research institutes in Malawi, Kenya, Uganda and Tanzania – among others with the University of Malawi where Prof. Labuschagne and her students are involved in the International Programme in the Chemical Sciences (IPICS) of the Uppsala University in Sweden. The project focuses on the study of genetics and chemistry of tropical roots and tuber crops in Malawi. This has led to collaboration with international research organisations and has generated overseas funding.

The combined team from FARMOVS–PAREXEL and the UFS won an award for the synthesis of drug analogues used as reference products during the analysis of the drug concentration in blood, from existing and new drugs registered nationally and internationally.

The project resulted in capacity building in synthetic organic chemistry, mass spectrometry and chromatography: Five master’s degrees were completed, seven are in progress, and six postgraduate students commenced with Ph.D.’s.

The skills transferred during this project are already being applied to examine the properties of indigenous medicinal plants as part of the recently established UFS novel drugs and bioactive compound cluster.

Applied Biosystems, the Canadian manufacturer of mass spectrometers, donated equipment to the value of more than R10 million for this project. As a result the UFS is one of the few universities in the world that can offer postgraduate training in bioanalytical chemistry.

Prof. Hendrik Swart, head of the Department of Physics at the UFS, and Dr Martin Ntwaeaborwa, senior lecturer at the Department of Physics were finalist in the research- capacity developer and black-researcher categories respectively.
The NSTF awards gives recognition to the outstanding contributions of individuals and groups to science, engineering and technology. This includes all practising scientists, engineers and technologists across the system of innovation, including, for example, teachers and students in mathematics, science and technology. The NSTF represents government, science councils, professional bodies, higher education, business and civil society.

Altogether nine individuals and three organisations were presented with the NSTF Awards trophy by the Minister of Science and Technology, Mr Mosibudi Mangena.

Media Release
Issued by: Lacea Loader
Assistant Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za
4 June 2008

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