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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

UFS boasts with world class research apparatus
2005-10-20

 

 

At the launch of the diffractometer were from the left Prof Steve Basson (Chairperson:  Department of Chemistry at the UFS), Prof Jannie Swarts (Unit for Physical and Macro-molecular Chemistry at the UFS Department of Chemistry), Mr Pari Antalis (from the provider of the apparatus - Bruker SA), Prof Herman van Schalkwyk (Dean:  Faculty of Natural and Agricultural Sciences at the UFS), Prof André Roodt (head of the X-ray diffraction unit at the UFS Department of Chemistry) and Prof Teuns Verschoor (Vice-Rector:  Academic Operations at the UFS).

UFS boasts with world class research apparatus
The most advanced single crystal X-ray diffractometer in Africa has been installed in the Department of Chemistry at the University of the Free State (UFS).

“The diffractometer provides an indispensable technique to investigate compounds for medicinal application for example in breast, prostate and related bone cancer identification and therapy, currently synthesized in the Department of Chemistry.  It also includes the area of homogeneous catalysis where new compounds for industrial application are synthesised and characterised and whereby SASOL and even the international petrochemical industry could benefit, especially in the current climate of increased oil prices,” said Prof Andrè Roodt, head of the X-ray diffraction unit at the UFS Department of Chemistry.

The installation of the Bruker Kappa APEX II single crystal diffractometer is part of an innovative programme of the UFS management to continue its competitive research and extend it further internationally.

“The diffractometer is the first milestone of the research funding programme for the Department of Chemistry and we are proud to be the first university in Africa to boast with such advanced apparatus.  We are not standing back for any other university in the world and have already received requests for research agreements from universities such as the University of Cape Town,” said Prof Herman van Schalkwyk, Dean:  Faculty of Natural and Agricultural Sciences at the UFS.

The diffractometer is capable of accurately analysing molecules in crystalline form within a few hours and obtain the precise geometry – that on a sample only the size of a grain of sugar.   It simultaneously gives the exact distance between two atoms, accurate to less than fractions of a billionth of a millimetre.

“It allows us to investigate certain processes in Bloemfontein which has been impossible in the past. We now have a technique locally by which different steps in key chemical reactions can be evaluated much more reliable, even at temperatures as low as minus 170 degrees centigrade,” said Prof Roodt.

A few years ago these analyses would have taken days or even weeks. The Department of Chemistry now has the capability to investigate chemical compounds in Bloemfontein which previously had to be shipped to other, less sophisticate sites in the RSA or overseas (for example Sweden, Russia and Canada) at significant extra costs.

Media release
Issued by:Lacea Loader
Media Representative
Tel:   (051) 401-2584
Cell:  083 645 2454
E-mail:  loaderl.stg@mail.uovs.ac.za
19 October 2005   

 

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