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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

Fight against Ebola virus requires more research

2014-10-22

Dr Abdon Atangana
Photo: Ifa Tshishonge

Dr Abdon Atangana, a postdoctoral researcher in the Institute for Groundwater Studies at the University of the Free State (UFS), wrote an article related to the Ebola virus: Modelling the Ebola haemorrhagic fever with the beta-derivative: Deathly infection disease in West African countries.

“The filoviruses belong to a virus family named filoviridae. This virus can cause unembellished haemorrhagic fever in humans and nonhuman monkeys. In literature, only two members of this virus family have been mentioned, namely the Marburg virus and the Ebola virus. However, so far only five species of the Ebola virus have been identified, including: Ivory Coast, Sudan, Zaire, Reston and Bundibugyo.

“Among these families, the Ebola virus is the only member of the Zaire Ebola virus species and also the most dangerous, being responsible for the largest number of outbreaks.

“Ebola is an unusual, but fatal virus that causes bleeding inside and outside the body. As the virus spreads through the body, it damages the immune system and organs. Ultimately, it causes the blood-clotting levels in cells to drop. This leads to severe, uncontrollable bleeding.

Since all physical problems can be modelled via mathematical equation, Dr Atangana aimed in his research (the paper was published in BioMed Research International with impact factor 2.701) to analyse the spread of this deadly disease using mathematical equations. We shall propose a model underpinning the spread of this disease in a given Sub-Saharan African country,” he said.

The mathematical equations are used to predict the future behaviour of the disease, especially the spread of the disease among the targeted population. These mathematical equations are called differential equation and are only using the concept of rate of change over time.

However, there is several definitions for derivative, and the choice of the derivative used for such a model is very important, because the more accurate the model, the better results will be obtained. The classical derivative describes the change of rate, but it is an approximation of the real velocity of the object under study. The beta derivative is the modification of the classical derivative that takes into account the time scale and also has a new parameter that can be considered as the fractional order.

“I have used the beta derivative to model the spread of the fatal disease called Ebola, which has killed many people in the West African countries, including Nigeria, Sierra Leone, Guinea and Liberia, since December 2013,” he said.

The constructed mathematical equations were called Atangana’s Beta Ebola System of Equations (ABESE). “We did the investigation of the stable endemic points and presented the Eigen-Values using the Jacobian method. The homotopy decomposition method was used to solve the resulted system of equations. The convergence of the method was presented and some numerical simulations were done for different values of beta.

“The simulations showed that our model is more realistic for all betas less than 0.5. The model revealed that, if there were no recovery precaution for a given population in a West African country, the entire population of that country would all die in a very short period of time, even if the total number of the infected population is very small. In simple terms, the prediction revealed a fast spread of the virus among the targeted population. These results can be used to educate and inform people about the rapid spread of the deadly disease,” he said.

The spread of Ebola among people only occurs through direct contact with the blood or body fluids of a person after symptoms have developed. Body fluid that may contain the Ebola virus includes saliva, mucus, vomit, faeces, sweat, tears, breast milk, urine and semen. Entry points include the nose, mouth, eyes, open wounds, cuts and abrasions. Note should be taken that contact with objects contaminated by the virus, particularly needles and syringes, may also transmit the infection.

“Based on the predictions in this paper, we are calling on more research regarding this disease; in particular, we are calling on researchers to pay attention to finding an efficient cure or more effective prevention, to reduce the risk of contamination,” Dr Atangana said.

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