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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

Science is diversifying the uses of traditional medicines
2017-07-17

Description: Dr Motlalepula Matsabisa  Tags: traditional medicines, Indigenous Knowledge Systems, Dr Motlalepula Matsabisa, Malaria, priority disease  

Dr Motlalepula Matsabisa.
Photo: Anja Aucamp

According to the World Health Organisation, a large majority of the African population are making use of traditional medicines for health, socio-cultural, and economic purposes. In Africa, up to 80% of the population uses traditional medicines for primary healthcare.

The Indigenous Knowledge Systems (IKS) was identified as a lead programme under the directorship of Dr Motlalepula Matsabisa. Research undertaken by the IKS Lead Programme focuses on some key priority diseases of the country and region – including malaria, HIV, cancer, and diabetes.
 
Not just a plant or tree

Malaria is a priority disease and is prevalent in rural and poor areas, resulting in many traditional health practitioners claiming to treat and cure the disease. There may well be substance to these claims, since as much as 30% of the most effective current prescription medicines are derived from plants.  For instance, chloroquine, artemisinin for malaria, Metformin for diabetes, Vincristine and Vinblastine for cancer, are plant-derived drugs.  

Dr Matsabisa’s current research is investigating a South African medicinal plant that has been shown to have in vitro antiplasmodial activity, with subsequent isolation and characterisation of novel non-symmetrical sesquiterpene lactone compounds offering antimalarial activity. These novel compounds are now patented in South Africa and worldwide. This research is part of the UFS and South Africa’s strive to contribute to the regional and continental malaria problem. The UFS are thus far the only university that has been granted a permit by the Medicines Control Council to undertake research on cannabis and its potential health benefits.

“All of these projects are aimed
at adding value through the scientific
research of medicinal plants, which
can be used for treating illnesses,
diseases, and ailments.”

Recognition well deservedThrough Dr Matsabisa’s research input and contributions to the development of the pharmacology of traditional medicines, he recently became the first recipient of the International Prof Tuhinadrin Sen Award from the International Society of Ethnopharmacology (ISE) and the Society of Ethnopharmacology in India. ISE recognises outstanding contributions by researchers, scientists, and technologists in the area of medicinal plant research and ethnopharmacology internationally.

More recently, Dr Matsabisa undertook research projects funded by the National Research Foundation, as well as the Department of Science and Technology, on cancer, gangrene, and diabetes. He is also involved in a community project to develop indigenous teas with the community. He says, “All of these projects are aimed at adding value through the scientific research of medicinal plants, which can be used for treating illnesses, diseases, and ailments”.

Dr Matsabisa has worked with many local and international scientists on a number of research endeavours. He is grateful to his colleagues from the Department of Pharmacology in the Faculty of Health Sciences, who are dedicated to science research and the research of traditional medicines. The IKS unit also received immense support from the Directorate of Research Development.

 

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