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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

To tan or not to tan: a burning issue
2009-12-08

 Prof. Werner Sinclair

“Some evidence exists which implies that sunscreens could indeed be responsible for the dramatic rise in the incidence of melanoma over the past three decades, the period during which the use of sunscreens became very popular,” says Prof. Werner Sinclair, Head of the Department of Dermatology at the University of the Free State. His inaugural lecture was on the topic Sunscreens – Curse or Blessing?

Prof. Sinclair says the use of sunscreen preparations is widely advocated as a measure to prevent acute sunburn, chronic sun damage and resultant premature skin aging as well as skin malignancies, including malignant melanoma. There is inconclusive evidence to prove that these preparations do indeed achieve all of these claims. The question is whether these preparations are doing more harm than good?

He says the incidence of skin cancer is rising dramatically and these tumours are induced mostly by the ultra-violet rays.

Of the UV light that reaches the earth 90-95% belongs to the UVA fraction. UVC is normally filtered out by the ozone layer. UVB leads to sunburn while UVA leads to pigmentation (tanning). Because frequent sunburn was often associated with skin cancer, UVB was assumed, naively, to be the culprit, he says.

Exposure to sunlight induces a sense of well-being, increases the libido, reduces appetite and induces the synthesis of large amounts of vitamin D, an essential nutritional factor. The use of sunscreen creams reduces vitamin D levels and low levels of vitamin D have been associated with breast and colon cancer. Prof. Sinclair says the 17% increase in breast cancer from 1981 to 1991 parallels the vigorous use of sunscreens over the same period.

Among the risk factors for the development of tumours are a family history, tendency to freckle, more than three episodes of severe sunburn during childhood, and the use of artificial UV light tanning booths. He says it remains a question whether to tan or not. It was earlier believed that the main carcinogenic rays were UVB and that UVA merely induced a tan. The increase in UVA exposure could have severe consequences.

Prof. Sinclair says the UV light used in artificial tanning booths consists mainly of pure UVA which are highly dangerous rays. It has been estimated that six per cent of all melanoma deaths in the UK can be directly attributed to the use of artificial tanning lights. The use of an artificial tanning booth will double the melanoma risk of a person. “UVA is solely responsible for solar skin aging and it is ironical that tanning addicts, who want to look beautiful, are inflicting accelerated ageing in the process,” he says.

On the use of sunscreens he says it can prevent painful sunburn, but UVA-induced damage continues unnoticed. UVB blockers decrease vitamin D synthesis, which is a particular problem in the elderly. It also prevents the sunburn warning and therefore increases the UVA dosage that an individual receives. It creates a false sense of security which is the biggest problem associated with sunscreens.

Evidence obtained from the state of Queensland in Australia, where the heaviest and longest use of sunscreens occurred, boasted the highest incidence of melanoma in the world. A huge study in Norway has shown a 350% increase in melanoma for men and 440% for women. This paralleled the increase in the use of UVB blocking sunscreens while there was no change in the ozone layer. It did however, occur during that time when tanning became fashionable in Norway and there was an increase especially in artificial tanning.

Prof. Sinclair says: “We believe that sunscreen use does not directly lead to melanoma, but UVA exposure does. The Melanoma Epidemic is a reality. Sunscreen preparations are not the magical answer in the fight against melanoma and the irresponsible use of these preparations can worsen the problem.”

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt.stg@ufs.ac.za
7 December 2009

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