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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

Nanotechnology breakthrough at UFS

2010-08-19

Ph.D students, Chantel Swart and Ntsoaki Leeuw

Scientists at the University of the Free State (UFS) made an important breakthrough in the use of nanotechnology in medical and biological research. The UFS team’s research has been accepted for publication by the internationally accredited Canadian Journal of Microbiology.

The UFS study dissected yeast cells exposed to over-used cooking oil by peeling microscopically thin layers off the yeast cells through the use of nanotechnology.

The yeast cells were enlarged thousands of times to study what was going on inside the cells, whilst at the same time establishing the chemical elements the cells are composed of. This was done by making microscopically small surgical incisions into the cell walls.

This groundbreaking research opens up a host of new uses for nanotechnology, as it was the first study ever in which biological cells were surgically manipulated and at the same time elemental analysis performed through nanotechnology. According to Prof. Lodewyk Kock, head of the Division Lipid Biotechnology at the UFS, the study has far reaching implications for biological and medical research.

The research was the result of collaboration between the Department of Microbial, Biochemical and Food Biotechnology, the Department of Physics (under the leadership of Prof. Hendrik Swart) and the Centre for Microscopy (under the leadership of Prof.Pieter van Wyk).

Two Ph.D. students, Chantel Swart and Ntsoaki Leeuw, overseen by professors Kock and Van Wyk, managed to successfully prepare yeast that was exposed to over-used cooking oil (used for deep frying of food) for this first ever method of nanotechnological research.

According to Prof. Kock, a single yeast cell is approximately 5 micrometres long. “A micrometre is one millionth of a metre – in laymen’s terms, even less than the diameter of a single hair – and completely invisible to the human eye.”

Through the use of nanotechnology, the chemical composition of the surface of the yeast cells could be established by making a surgical incision into the surface. The cells could be peeled off in layers of approximately three (3) nanometres at a time to establish the effect of the oil on the yeast cell’s composition. A nanometre is one thousandth of a micrometre.

Each cell was enlarged by between 40 000 and 50 000 times. This was done by using the Department of Physics’ PHI700 Scanning Auger Nanoprobe linked to a Scanning Electron Microscope and Argon-etching. Under the guidance of Prof. Swart, Mss. Swart en Leeuw could dissect the surfaces of yeast cells exposed to over-used cooking oil.

The study noted wart like outgrowths - some only a few nanometres in diameter – on the cell surfaces. Research concluded that these outgrowths were caused by the oil. The exposure to the oil also drastically hampered the growth of the yeast cells. (See figure 1)

Researchers worldwide have warned about the over-usage of cooking oil for deep frying of food, as it can be linked to the cause of diseases like cancer. The over-usage of cooking oil in the preparation of food is therefore strictly regulated by laws worldwide.

The UFS-research doesn’t only show that over-used cooking oil is harmful to micro-organisms like yeast, but also suggests how nanotechnology can be used in biological and medical research on, amongst others, cancer cells.

Figure 1. Yeast cells exposed to over-used cooking oil. Wart like protuberances/ outgrowths (WP) is clearly visible on the surfaces of the elongated yeast cells. With the use of nanotechnology, it is possible to peel off the warts – some with a diameter of only a few nanometres – in layers only a few nanometres thick. At the same time, the 3D-structure of the warts as well as its chemical composition can be established.

Media Release
Issued by: Mangaliso Radebe
Assistant Director: Media Liaison
Tel: 051 401 2828
Cell: 078 460 3320
E-mail: radebemt@ufs.ac.za
18 August 2010

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