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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 involved in project to light up the townships

2006-06-06

The parties involved with the project are from the left: Prof Hendrik Swart (Departmental Chairperson of the UFS Department of Physics), Dr Thembela Hillie (CSIR), Prof Neerich Revaprasadu (Department of Chemistry at the University of Zululand) and Dr Wynand Steyn (CSIR).

UFS involved in project that could light up the townships

The University of the Free State’s (UFS) Department of Physics is involved with a project that could make life easier in the townships through the use of artificial light.

“The project is based on the use of sunlight to activate nano material in for example cement and paint during the day. At night the cement or paint can then radiate light,” said Prof Hendrik Swart, Departmental Chairperson of the UFS Department of Physics.

According to Prof Swart an amount of R3,9 million has been made available by the Council for Scientific and Industrial Research (CSIR) for the further development of the project.

Prof Swart visited the University of Florida in America in 1995 for a year where he researched luminescent phosphor material that is suitable for flat panel television screens. The red, green and blue spots on the television screens originate from these kinds of phosphor materials. “At that stage plasma television screens were only a dream. Today it is sold everywhere,” said Prof Swart.

“Upon my return I started a research group at the UFS which investigated the degrading of phosphor material. We also started to concentrate on the effectiveness of nano phosphors. In the mean time our cooperation with the Americans was strengthened with follow-up visits to America of my colleagues, Prof Koos Terblans and Mr Martin Ntwaeaborwa,” said Prof Swart.

“Nano phosphors are basically luminescent powders that consist of particles that are 1 millionth of a millimetre. These particles can provide light as soon as they are illuminated with, for instance, sunlight. The amount of time these particles can provide light, is determined by the impurities in the material,” said Prof Swart.

According to Prof Swart nano particles are developed and linked to infrastructure materials in order for these materials to be excited during the day by sunlight and then it emits light during night time.

“The nano material is of such a nature that it can be mixed with materials, such as paint or cement. The yellow lines of roads can for example emit light in a natural way during night time,” said Prof Swart.

About a year ago Prof Swart and Dr Thembela Hillie, a former Ph D-student of the UFS Department of Physics, had discussions with Prof Neerich Revaprasadu from the University of Zululand and the CSIR about the possibility of mixing these nano phosphor particles with other materials that can be used as light sources in the building of roads and houses.

“Prof Revaprasadu is also actively involved in the research of nano materials. Our efforts resulted in the CSIR approving the further extension of the project,” said Prof Swart.

“The UFS and the University of Zululand are currently busy investigating ways to extend the light emitting time,” said Prof Swart.

“There are eight M Sc and Ph D-students from the UFS and about five students from the University of Zululand working on this research project. The Department of Physics at the Qwaqwa Campus of the UFS, with Francis Dejene as subject head, is also involved with the project,” said Prof Swart.

According to Prof Swart the further applications of nano materials are unlimited. “Children whose parents cannot afford electricity can for instance leave any object such as a lamp, that is covered with these phosphor particles, in the sun during the day and use it at night as a light for study purposes,” said Prof Swart.

According to Prof Swart the further extension of the project will take about two years. “During this time we want to determine how the effectiveness of the phosphors can be increased. Discussions with the government and other role players for the possible implementation of the project are also part of our planning,” said Prof Swart.

Media release
Issued by: Lacea Loader
Media Representative
Tel: (051) 401-2584
Cell: 083 645 2454
E-mail: loaderl.stg@mail.uovs.ac.za
6 June 2006

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