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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

When you are deaf, you have to work very hard to join in the conversation
2014-09-11

 

Dr Magteld Smith

A researcher at the University of the Free State is part of an overseas audiological breakthrough, after receiving a newly developed cochlear implant processor.

Dr Magteld Smith, researcher at the University of the Free State’s Department of Otorhinolaryngology, is the first South African to receive the Rondo cochlear implant processor from Med-El in Austria, manufacturers of cochlear implants and audiology-assisting appliances.

In the field of cochlear implants, the Rondo device is very advanced in the sense that the single-unit device is wireless and easily adapts to the sound of various environments (i.e. nature, conference halls, planes and phones). It also enables the receiver of a cochlear implant to hear more than one sound at a time – something that wasn’t previously possible.

Dr Smith tells about the meaning of the device in just a short time: “For the first time I can take a walk with my dog and hear both our footsteps on the gravel of the dirt road. I can hear my own footsteps, as well as the chirping of three different birds. All at the same time.”

Dr Smith, who is currently devoting her research to the medical-social model of the global organisation, International Classification of Functioning, Disabilities and Health, as well as research in all fields of deafness, relates the anxiety, frustration and depression which formed part of her daily existence. It also complicated and undermined her academic participation.

“Deafness is very traumatic. When you are deaf, you have to work so much harder to compete in a hearing world and to join in the conversation. Because of your deafness you become anxious about misunderstandings in the workplace.”

Dr Smith is working hard and constantly not to take a back seat in the academy due to her deafness. On completion of the Hubert H. Humphrey Fellowship programme, she received a certificate signed by the American president, Barack Obama, and was named as one of the top three researchers among 400 researchers from 192 countries. Only two South Africans are selected every year by the American State and International Institute for Education. 
 
In June this year, she delivered a presentation of her work and research at the 13th International Conference on Cochlear Implants in Munich, Germany. In July this year, she delivered a presentation at the 5th International Conference for Global Hearing Health. In August she was awarded a scholarship from the Golden Key International Honour Society for outstanding scholastic proficiency and academic merit.

“As a child, my parents were told that I was ineducably disabled. Today, I am grateful for the endless speech therapy since my toddler days, and to my dear mother, Jo, and late father, Chris Boshoff, and their firm belief in God which made them believe in me as a person with a congenital deafness. I am grateful for their unconditional love, endless patience, encouragement and support through my long journey in a competitive hearing world. This, together with the help of technology, enabled me to make a significant contribution to the academic world. Everything in my life is undeserved grace, pure kindness.” 
 
 

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