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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

Wildlife researcher in ground-breaking global research on giraffes

2017-10-20

Dr Deacon from the Department of Animal, Wildlife and Grassland
Sciences at the University of the Free State (UFS),
lead a multispecialist research group to catch
and collar giraffe to collect data that will
contribute to the conservation of these animals.
Photo: Prof Nico Smith

Capturing 51 giraffes without any injuries or mortalities to collect data that will contribute to the conservation of these animals is not for everyone. Capturing a giraffe with minimum risk to the animal and the people involved, requires extraordinary skill, planning, and teamwork. “This exercise is a dangerous task, since a well-placed kick from these large and extremely powerful animals can cause serious injuries. Early in October was the first time that giraffes were captured on such a large scale,” said wildlife researcher Dr Francois Deacon.

Dr Deacon from the Department of Animal, Wildlife and Grassland Sciences at the University of the Free State (UFS), led a multispecialist research group of over 30 people from 10 different countries to collect information about these little-known animals.

UFS first to collar giraffe
Taking a global approach, the team responsible for this intricate process consisted of wildlife biologists, conservationists, interdisciplinary scientists and five specialist veterinarians who are experienced in catching and working with wild animals. Specialised drugs sponsored by Dr Kobus Raath from Wildlife Pharmaceuticals, tested for the first time and administered with a dart gun were used to tranquillise the giraffe, which then allowed for the GPS collars to be fitted. These collars, sponsored by Africa Wildlife Tracking, enable the researchers to record the location of individual giraffe for up to two years, give 24/7 readings, irrespective of weather conditions. In this cost-effective manner, data can be gathered on climatic factors, giraffe communication, social behaviour, home ranges, seasonal movements, human and giraffe interaction zones, as well as migration routes and the duration of the migration process. The collars will effectively be used to locate individuals to collect faecal samples for hormonal cycles, stress hormones, nutrient deficiencies based on diet and also internal parasites.

“This knowledge we gain is the key to all keys in saving this iconic animal from becoming extinct,” said Dr Deacon.

Six years ago, during a pilot study, Dr Deacon was the first researcher to fit giraffes with a GPS collar. Collaring is less invasive and allows researchers to collect detailed samples. Not only was extensive knowledge and experience gained during the process, but he also initiated interest from the filmmaker and conservationist, Ashley Scott Davison, executive producer of Iniosante Inc.

Getting to tell the story
Davison, who was doing research for a film on giraffe learnt about the silent extinction of the species. In a great number of countries giraffe numbers have been declining by as much as 40% over only a few years since 2000. Today West Africa has between 400 to 600 giraffe left while four out of five giraffes were lost in East Africa since 2000. This is a considerable decline in numbers and poses a real threat to the survival of the species in the longer term. At the end of 2016, the giraffe was classified as vulnerable on the International Union for Conservation of Nature Red Data list.

According to Davison, children in school learn about the destruction caused by ivory poaching and habitat loss. But in Africa today, there are six times as many elephants as there are giraffes.

In the process to find out more about this majestic species Davison learnt of Dr Deacon’s work. After being introduced to and spending time with Dr Deacon, Davison not only describes the UFS as the leader in the conservation of giraffes but he returned to the university, three times to help build a dedicated research team to address unanswered research questions within various disciplines.

Flowing from the affiliation with the UFS is Iniosante’s award-winning production of a documentary, “Last of the Longnecks”. The film has received several awards, including official selection at the 2017 Global Peace Film Festival, the Wildlife Conservation Film Festival and the Environmental Film Festival in the US capital.

The film team accompanied the multispecialist research team last week to gather footage for a follow-up documentary, “Catching Giants”. This film is expected to air in middle 2018.

Video clip of the event: https://www.dropbox.com/s/d3kv9we690bwwto/giraffe_UFS_revision-01a.mp4?dl=0

Video clip of the event: RooistoelTV

Former articles on this topic:

18 Nov 2016: http://www.ufs.ac.za/templates/news-archive-item?news=7964
23 August 2016: http://www.ufs.ac.za/templates/news-archive-item?news=7856
9 March 2016:Giraffe research broadcast on National Geographic channel
18 Sept 2015 Researchers reach out across continents in giraffe research
29 May 2015: Researchers international leaders in satellite tracking in the wildlife environment

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