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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

Researcher at Qwaqwa Campus, Dr Aliza le Roux, selected as SAYAS member
2014-09-12

 

Dr Aliza le Roux

Dr Aliza le Roux, senior lecturer in the Department of Zoology and Entomology on the Qwaqwa Campus of the University of the Free State (UFS), was selected as a member of the 2014 South African Young Academy of Science (SAYAS). Dr Le Roux, a member of the Vice-Chancellor's Prestige Scholars Programme at the UFS, is also a South African National Research Foundation-rated (NRF) scientist (Y2) and the winner of the UFS Vice-Chancellor’s Excellence in Teaching Award in 2013.

She sees her selection to SAYAS as a unique opportunity to help change the face of science in South Africa. Dr Le Roux hopes to use her skills as project leader in social media, as well as her own learning experiences on a rural campus, to inspire especially ecological research in a country so rich in its own natural heritage.

The SAYAS selection committee was impressed by the high level of academic merit and depth of the nominations they received. “Your membership is critical in contributing to many of the vital activities and functioning of SAYAS, and we look forward to your active contributions to the further development and growth of the Young Academy,” said Prof Aldo Stroebel, Chair: SAYAS Selection Committee.

Prof Corli Witthuhn, Vice-Rector: Research at the UFS, said, “Aliza le Roux is an outstanding young scientist on our Qwaqwa Campus. She is not only an outstanding researcher but has also received prizes during the past year for her dedication to teaching. I am very excited about the young researchers on our Qwaqwa Campus with Aliza as one of the leaders, and I am looking forward to what else they can achieve in the next five years.”

In the past decade, Dr Le Roux focused her research on the cognitive and communicative skills of wild mammals in South Africa and Ethiopia. She spent four years as a postdoctoral research fellow at the University of Michigan, leading to ground-breaking research on the cognitive and communicative underpinnings of gelada monkey behaviour. Her current work encompasses an NRF-funded project on paternal care in bat-eared foxes, and experimental research on spatial cognition in wild samango monkeys. She is also involved in discussions with the Endangered Wildlife Trust to research the mitigation of road-kill incidents in South Africa.

Dr Le Roux hopes to combine cognitive ecology with more applied conservation questions in order to raise the profile of behavioural ecology as a discipline. She believes strongly in involving the public with scientific research, and has blogged for Nature Magazine on her adventures as field biologist. Her work has since found its way into numerous websites, magazine and newspaper articles and she has been interviewed on radio and BBC World.

Dr Le Roux will be inaugurated as SAYAS member on 14 October 2014.

Dr Marieka Gryzenhout from the Department of Plant Sciences is also a member of SAYAS.


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