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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 to host one of three world summits on crystallography

2014-04-15

Prof André Roodt from the Department of Chemistry at the University of the Free State (UFS), co-unveiled a special plaque in Poznan, Poland, as president of the European Crystallographic Association, with prof Gautam Desiraju, president of the IUCr (front right) and others to commemorate the Nobel prize winner Max von Laue. (Photo's: Milosz Ruszkowski, Grzegorz Dutkiewicz)

Prof André Roodt from the Department of Chemistry at the University of the Free State (UFS), co-unveiled a special plaque in Poznan, Poland, as president of the European Crystallographic Association, to commemorate the Nobel prize winner Max von Laue at a special Laue Symposium organised by prof Mariusz Jaskolski from the A. Mickiewicz University in Poznan.

Max von Laue, who spent his early childhood in Poznan, was the first scientist to diffract X-rays with a crystal.

2014 has been declared by the United Nations as the International Year of Crystallography, and it was recently officially opened at the UNESCO headquarters in Paris, France, by the Secretary-General of the UN, Ban Ki-moon. The International Year of Crystallography celebrates the centennial of the work of Max von Laue and the father and son, William Henry and William Laurence Bragg.

As part of the celebrations, Prof Roodt, president of the European Crystallographic Association, one of the three regional affiliates (Americas, Europe and Africa; Asia and Australasia) of the International Union of Crystallography (IUCr), was invited by the president of the IUCr, Prof Gautam Desiraju, to host one of the three world summits, wherein crystallography is to showcase its achievements and strategise for the future.

The summit and conference will take place on the Bloemfontein Campus of the UFS from 12 to 17 October 2014 and is titled: 'Crystallography as vehicle to promote science in Africa and beyond.' It is an ambitious meeting wherein it is anticipated to bring the French-, English- and Arab-speaking nations of Africa together to strategise how science can be expanded, and to offer possibilities for this as nestled in crystallography. Young and established scientists, and politicians associated with science and science management, are the target audience to be brought together in Bloemfontein.

Dr Thomas Auf der Heyde, acting Director General of the South African Department of Science and Technology (DST), has committed some R500 000 for this effort, while the International Union of Crystallography provided R170 000.

“Crystals and crystallography form an integrated part of our daily lives, form bones and teeth, to medicines and viruses, new catalysts, jewellery, colour pigments, chocolates, electronics, batteries, metal blades in airplane turbines, panels for solar energy and many more. In spite of this, unfortunately, not many people know much about X-ray crystallography, although it is probably one of the greatest innovations of the twentieth century. Determining the structure of the DNA was one of the most significant scientific events of the 20th century. It has helped understand how genetic messages are being passed on between cells inside our body – everything from the way instructions are sent to proteins to fight infections, to how life is reproduced.

“At the UFS, crystallography finds application in Chemistry, Physics, Biology, Mathematics, Geology, Engineering and the Medical fields. Crystallography is used by the Curiosity Rover, analysing the substances and minerals on Mars!

“The UFS’s Departments of Chemistry and Physics, in particular, have advanced instruments and important research thrusts wherein X-ray crystallography has formed a central part for more than 40 years.

“Crystallography has produced some 28 Nobel prize winners over the past 100 years and continues to provide the means for fundamental and applied research,” said Prof Roodt.

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