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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

Link between champagne bubbles and the UFS?
2012-11-16

Prof. Lodewyk Kock with an example of a front page of the publication FEMS Yeast Research, as adapted by F. Belliard, FEMS Central Office.
Photo: Leatitia Pienaar
15 November 2012

What is the link between the bubbles in champagne and breakthrough research being done at the Mayo Clinic in America? Nano research being done at our university.

Prof. Lodewyk Kock of Biotechnology says a human being consists of millions of minute cells that are invisible to the eye. The nano technology team at the UFS have developed a technique that allows researchers to look into such a cell, as well as other microorganisms. In this way, they can get an idea of what the cell’s “insides” look like.

The UFS team – consisting of Profs. Kock, Hendrik Swart (Physics), Pieter van Wyk (Centre for Microscopy), as well as Dr Chantel Swart (Biotechnology), Dr Carlien Pohl (Biotechnology) and Liza Coetsee (Physics) – were amazed to see that the inside of cells consist of a maze of small tunnels or blisters. Each tunnel is about 100 and more nanometres in diameter – about one ten thousandth of a millimetre – that weaves through the cells in a maze.

It was also found that these tunnels are the “lungs” of the cells. Academics doing research on yeast have had to sit up and take notice of the research being done at the UFS – to the extent that these “lungs” will appear on the front page of the highly acclaimed FEMS Yeast Research for all of 2013.

The Mayo Clinic, in particular, now wants to work with the UFS to study cancer cells in more detail in order to fight this disease, says Prof. Kock. The National Cancer Institute of America has also shown interest. This new nano technology for biology can assist in the study and development of nano medicine that can be used in the treatment of cancer and other life threatening diseases. Nano medicine uses nano metal participles that are up to one billionth of a metre in size.

Prof. Kock says laboratory tests indicate that nano medicine can improve the efficacy of anti-cancer medicine, which makes the treatment less toxic. “According to the Mayo Clinic team, nano particles are considered as a gold cartridge which is being fired directly at a cancer tumour. This is compared to fine shot that spreads through the body and also attacks healthy cells.”

“This accuracy implies that the chemotherapy dose can be lowered with fewer side effects. The Mayo Clinic found that one-tenth of the normal dosage is more effective against pancreas cancer in this way than the full dosage with a linkage to nano particles. According to the clinic, this nano medicine could also delay the spread of cancer,” says Prof. Kock.

The nano particles are used as messengers that convey anti-cancer treatment to cancer cells, where it then selectively kills the cancer cells. The transport and transfer of these medicines with regard to gold nano particles can be traced with the UFS’s nano technology to collect more information, especially where it works on the cell.

“With the new nano technology of the UFS, it is possible to do nano surgery on the cells by slicing the cells in nanometre thin slices while the working of the nano medicine is studied. In this way, it can be established if the nano medicine penetrates the cells or if it is only associated with the tiny tunnels,” says Prof. Kock.

And in champagne the small “lungs” are responsible for the bubbles. The same applies to beer and with this discovery a whole new reach field opens for scientists.

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