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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

UFS boasts with most advanced chemical research apparatus in Africa

2005-11-23

Celebrating the inauguration of the NMR were from the left Prof Frederick Fourie (Rector and Vice-Chancellor of the UFS), Dr Detlef Müller (Development Scientist and Manager: Africa and Asia of Bruker in Germany, the supplier of the NMR), Prof Jannie Swarts (head of the head of the Division Physical Chemistry at the UFS) and Prof Herman van Schalkwyk (Dean: Faculty of Natural and Agricultural Sciences at the UFS). Photo: Lacea Loader

UFS boasts with most advanced chemical research apparatus in Africa

The University of the Free State’s (UFS) Department of Chemistry now boasts with some of the most advanced chemical research apparatus in Africa after the latest addition, a nuclear magnetic resonance (NMR) spectrometer, was inaugurated today by the Rector and Vice-Chancellor, Prof Frederick Fourie. The NMR is used to analyse molecular structures.

Last month the Department of Chemistry celebrated the installation of the most advanced single crystal X-ray diffractometer in Africa. The diffractometer provides an indispensable technique to investigate among others the solid state of compounds for medicinal application.

“Three years ago the UFS executive management realised that, if we want to build a university of excellence, we should invest in research. We started to think strategically about chemistry and decided to bring the apparatus at the Department of Chemistry on a more competitive standard. Strategic partnerships were therefore secured with companies like Sasol,” said Prof Fourie during the inauguration ceremony.

“The installation of the NMR symbolises the ability of the UFS to turn academic areas around. I hope that this is the beginning of a decade of excellence for chemistry at the UFS,” said Prof Fourie.

”The catalogue value of the Bruker 600 MHz NMR is approximately R11 million. With such an advanced apparatus we are now able to train much more post-graduate students,“ said Prof Jannie Swarts, head of the Division Physical Chemistry at the UFS.

”The NMR is the flagship apparatus of the UFS Department of Chemistry that enables chemists to look at compounds more easily at a molecular level. Research in chemistry is critically dependent on NMR, which is a technique that can determine the composition of reactants and products in complicated chemical reactions, with direct application is most focus areas in chemistry,“ said Prof Swarts.

”Parts of the spectrometer consists of non-commercial items that were specifically designed for the UFS Department of Chemistry to allow the study of unique interactions in e.g. rhodium and platinum compounds,” said Prof Swarts.

According to Prof Swarts the NMR enables chemists to conduct investigations on the following:

To evaluate for example the complex behaviour of DNA in proteins as well as the analysis of illegal drugs sometimes used by athletes.
It provides an indispensable technique to investigate compounds for medicinal application for example in breast, prostate and related bone cancer identification and therapy, which are currently synthesised in the Department of Chemistry.
It can also be applied to the area of homogeneous catalysis where new and improved compounds for industrial application are synthesized and characterised, whereby Sasol and even the international petrochemical industry could benefit. This analytical capacity is highly rated, especially in the current climate of increased oil prices.
The NMR can detect and identify small concentrations of impurities in feed streams in the petrochemical industry, e.g. at Sasol and also the international petrochemical industry. These minute amounts of impurities can result in metal catalyst deactivation or decomposition and can cause million of rands worth in product losses.
It is indispensable for studying the complexity of samples that is non-crystalline. These materials represent the vast majority of chemical compounds such as solvents, gasoline, cooking oil, cleaning agents and colorants as examples.

According to Prof Swarts the general medical technique of MRI (magnetic resonance imaging) in use at larger hospitals, is based on NMR technology.

”The NMR apparatus enabled the Department of Chemistry to characterise complex molecules that were synthesised for the multi-national company, FARMOFS-PAREXEL, and to negotiate research agreements with overseas universities,” said Prof Swarts.

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

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