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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

Art and science help us understand the world and our place in it
2017-10-28



Description: Art and science  Tags: Art and science

At the event were, from the left: Tristan Nel, first-year Fine Arts student;
Dr Janine Allen-Spies from the Department of Fine Arts;
Prof Carlien Pohl-Albertyn from the Department of Microbiology,
Biochemical and Food Biotechnology; and Pheny Mokawane, a
Microbiology, Biochemical and Food Biotechnology student.
Photo: Charl Devenish

Although BioArt dates back as far as the 15th and 16th centuries with the work of Leonardo da Vinci, it is not every day that art and science combine. This rare phenomenon made its appearance when two totally different groups of students – studying arts and microbiology respectively – joined hands in an initiative to create BioArt.

This first-time undergraduate teaching collaboration between the Departments of Fine Arts and Microbial, Biochemical and Food Biotechnology at the University of the Free State (UFS), which is characterised by the use of living materials, such as enzymes, microbes and DNA, as well as scientific tools and methods, is exploring a number of questions. 

Different outcomes for arts and microbiology students

According to Prof Carlien Pohl-Albertyn from the Department of Microbiology, Biochemical and Food Biotechnology, one of the central questions explored in BioArt is the nature of ‘life’. “At which stage can matter be classified as being alive or living?” she asked. 

“We realised that the outcomes for the two groups of students would not be the same. For the microbiology students, the focus would be on the understanding and effective communication of a microbiological concept. For the art students the focus would be on the execution of the assignment using visual elements and applied theory of art,” said Prof Pohl-Albertyn.

Dr Janine Allen-Spies from the Department of Fine Arts added: “Art students will also be exploring strangely or previously unforeseen gaps between art and science that can be filled with imaginative interpretations which may forward creative insights in both BioArt as a developing art form and microbiology as investigative science.”

Students’ understanding of microbial evolution reflected in art
The art students had to visit the microbiology labs for their assignment as this is mostly a foreign environment for these students. “The paint medium they had to use was gouache. This medium with its bright colours works well to depict microscopic organisms in art,” Dr Allen-Spies said. 

On display at the Department of Microbial, Biochemical and Food Biotechnology on the Bloemfontein Campus, at a recent event to introduce this new initiative to a wider audience, was a range of visually and scientifically compelling paintings and artefacts (such as paintings, poems, songs, apps) which explore a theme within microbiology from a BioArt perspective that uses creativity to communicate concepts dealt with in the module Microbial Evolution and Diversity.

Any parties who are interested in buying the art can contact Dr Allen-Spies at allenj@ufs.ac.za.

Paintings and artefacts reflects students understanding of BioArt. At the recent opening of the BioArt exhibition at the UFS Department of Microbial, Biochemical and Food Biotechnology, was the work of Madeleen Jansen van Rensburg on display.

Pheny Mokawane, a Microbiology, Biochemical and Food Biotechnology student, wrote a poem for his BioArt project in the Microbial Evolution and Diversity assignment. 

 

 

 

 

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