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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

Young researchers are equipped to participate in projects relevant in global context
2017-09-05

 Description: Wheat genomics Tags: bioinformatics, Dr Renée Prins, Department of Plant Sciences, DNA and RNA, data sets 

This group of early career researchers received bioinformatics
training in Worcester in the UK from Dr Diane Saunders of the
John Innes Centre in the UK.
Photo: Supplied

The interdisciplinary field that develops methods and software tools to understand biological data is known as bioinformatics. According to Dr Renée Prins, a research fellow in the Department of Plant Sciences at the University of the Free State, there are few tertiary institutions in South Africa that offer a postgraduate degree in Bioinformatics.

“Most institutions focus either on humans, human diseases, forest trees and their pathogens.  They usually do not have spare capacity to assist researchers, for instance, those working on crops in the agricultural sector,” Dr Prins said.

Big data sets need significant skills

With the advancements made in genomics such as high throughput DNA marker platforms and next-generation sequencing technologies, the data sets biologists have to deal with have grown massively big and cannot be dealt with unless you have significant computer skills.

Dr Prins believes that all young researchers need some level of training in this field to be effective in future. The British Council Researcher Links, being run by the Newton Fund, gives early career researchers across selected partner countries the opportunity to form international connections through fully funded workshops and travel grants. Dr Prins made use of this opportunity and with the assistance of the Department of Research Development at the UFS, she arranged for Dr Diane Saunders of the John Innes Centre in the UK, a bioinformatician of note, to present training to a group of 20 early career researchers in Worcester in the UK.

Providing training with Dr Saunders were two other bioinformaticians from the UK, Dr Burkhard Steuernagel (John Innes Centre) and Dr Robert Davey (Earlham Institute). From the UFS side, Eleanor van der Westhuizen and Dr Henriëtte van den Berg (former UFS academic) acted as mentors, providing guidance on funding opportunities and career development skills.

Participating in projects in a global context
The researchers attending the training came from research institutions or academia, and they work involving plants (predominantly wheat) or plant pathogens. A limited number of participants from the commercial sector, including private South African companies focusing on plant breeding and molecular genetics lab work on agriculturally important crops also benefited from the training. 

“Tertiary institutions in South Africa have the obligation to ensure that young scientists are equipped with bioinformatics skills. If they are not equipped with the necessary skills, they will not be able to participate in research projects that are relevant in a global context,” said Dr Prins. 

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