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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

Renowned forensic scientist speaks at the UFS
2014-04-02


Forensic science is about the truth. At the presentation delivered by Dr David Klatzow, were, from the left: Tinus Viljoen, lecturer in Forensic Genetics, Dr Klatzow and Laura Heathfield, also a lecturer in Forensic Genetics.
Photo: Leonie Bolleurs 

It is necessary for more research to be done in the field of forensic science in South Africa. This is according to Dr David Klatzow, well-known forensic scientist, during a lecture delivered at the University of the Free State (UFS) last week.

The university is offering, for the first time this year, a BSc degree in Forensic Science in the Department of Genetics. This three-year degree is, among others, directed at people working for the South African Police Service on crime scenes and on criminal cases in forensic laboratories. Students can also study up to PhD level, specialising in various forensic fields.

There is no accredited forensic laboratory in South Africa. “It is time to look differently at forensic science, and to deliver research papers on the subject. In light of the manner in which science is applied, we have to look differently at everything,” Dr Klatzow said.

Dr Klatzow praised the university for its chemistry-based course. “Chemistry is a strong basis for forensic science,” he said.

A paradigm shift in terms of forensic science is needed. Micro scratches on bullets, fingerprints, DNA, bite marks – all of these are forensic evidence that in the past led to people being wrongfully hanged. This evidence is not necessarily the alpha and omega of forensic science today. DNA, which seems to be the golden rule, can produce problems in itself. Because a person leaves DNA in his fingerprint, it is possible that DNA is transferred from one crime scene to another by forensic experts dusting for fingerprints. According to Dr Klatzow, this is only one of the problems that could be experienced with DNA evidence.

“No single set of forensic evidence is 100% effective or without problems. Rather approach the crime scene through a combination of evidence, by collecting fingerprints, DNA, etc. It is also very important to look at the context in which the events happened.

“A person sees what he expects to see. This causes huge problems in terms of forensic science. For example, if a criminal fits the profile of the perpetrator, it doesn’t follow that this specific criminal is the culprit. It isn’t what we don’t know that gives us trouble, it’s what we know that isn’t so,” Dr Klatzow said.

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