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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

NRF grants of millions for Kovsie professors
2013-05-20

 

Prof Martin Ntwaeaborwa (left) and Prof Bennie Viljoen
20 May 2013


Two professors received research grants from the National Research Foundation (NRF). The money will be used for the purchase of equipment to add more value to their research and take the university further in specific research fields.

Prof Martin Ntwaeaborwa from the Department of Physics has received a R10 million award, following a successful application to the National Nanotechnology Equipment Programme (NNEP) of the NRF for a high-resolution field emission scanning electron microscope (SEM) with integrated cathodoluminescence (CL) and energy dispersive X-ray spectrometers (EDS).

Prof Bennie Viljoen from the Department of Microbial, Biochemical and Food Biotechnology has also been awarded R1,171 million, following a successful application to the Research Infrastructure Support Programme (RISP) for the purchase of a LECO CHN628 Series Elemental Analyser with a Sulphur add-on module.

Prof Ntwaeaborwa says the SEM-CL-EDS’ state-of-the art equipment combines three different techniques in one and it is capable of analysing a variety of materials ranging from bulk to individual nanoparticles. This combination is the first of its kind in Africa. This equipment is specifically designed for nanotechnology and can analyse particles as small as 5nm in diameter, a scale which the old tungsten SEM at the Centre of Microscopy cannot achieve.

The equipment will be used to simultaneously analyse the shapes and sizes of submicron particles, chemical composition and cathodoluminescence properties of materials. The SEM-CL-EDS is a multi-user facility and it will be used for multi- and interdisciplinary research involving physics, chemistry, materials science, life sciences and geological sciences. It will be housed at the Centre of Microscopy.
“I have no doubt that this equipment is going to give our university a great leap forward in research in the fields of electron microscopy and cathodoluminescence,” Prof Ntwaeaborwa said.

Prof Viljoen says the analyser is used to determine nitrogen, carbon/nitrogen, and carbon/hydrogen/nitrogen in organic matrices. The instrument utilises a combustion technique and provides a result within 4,5 minutes for all the elements being determined. In addition to the above, the machine also offers a sulphur add-on module which provides sulphur analysis for any element combination. The CHN 628 S module is specifically designed to determine the sulphur content in a wide variety of organic materials such as coal and fuel oils, as well as some inorganic materials such as soil, cement and limestone.

The necessity of environmental protection has stimulated the development of various methods, allowing the determination of different pollutants in the natural environment, including methods for determining inorganic nitrogen ions, carbon and sulphur. Many of the methods used so far have proven insufficiently sensitive, selective or inaccurate. The availability of the LECO analyser in a research programme on environmental pollution/ food security will facilitate accurate and rapid quantification of these elements. Ions in water, waste water, air, food products and other complex matrix samples have become a major problem and studies are showing that these pollutants are likely to cause severe declines in native plant communities and eventually food security.

“With the addition of the analyser, we will be able to identify these polluted areas, including air, water and land pollution, in an attempt to enhance food security,” Viljoen said. “Excess levels of nitrogen and phosphorous wreaking havoc on human health and food security, will be investigated.”

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