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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

Four modernised controlled environment cabinets inaugurated

2006-07-27

Photographed in a controlled environment cabinet were at the back from the left: Mr Adriaan Hugo (head of the UFS Electronics and Mechanisation Division), Prof Herman van Schalkwyk (Dean: Faculty of Natural and Agricultural Sciences at the UFS) and Prof Koos Terblans (lecturer at the UFS Department of Physics). In front is Mr Koos Uys (engineering consultant from Experto Designa who helped with the cooling systems of the cabinets).
Photo: Leonie Bolleurs

Different look for research in controlled circumstances at the UFS

Research in controlled circumstances at the University of the Free State (UFS) turned a new page today with the inauguration of four modernised controlled environment cabinets of the Department of Soil, Crop and Climate Sciences.

“The controlled environment cabinets, which are situated next to the glass houses on the eastern side of the Agriculture Building on the Main Campus in Bloemfontein, were installed in the early 1980’s. The cabinets, used for research purposes in controlled circumstances by the UFS for many years, became dysfunctional and needed to be repaired and put into use again,” said Prof Herman van Schalkwyk, Dean: Faculty of Natural and Agricultural Sciences at the UFS.

“The cabinets are used by the agronomics, horticulture and soil science divisions of the Department of Soil, Crop and Climate Sciences to control factors such as the temperature, the intensity and quality of light, synthesis and humidity. This is done 24 hours a day, with hourly intervals,” said Prof Van Schalkwyk.

The cabinets are ideally suited to determine the joint and separate effects of these factors on the growth of plants. The adaptability of plants to climate can also be investigated under controlled circumstances. All of this leads to a better understanding of the growth and development process of plants, more specifically that of agricultural crops.

“The effect of these environmental factors on the effectiveness of insect killers such as fungus killers, insecticide and weed killers can also be investigated and can help to explain the damage that is sometimes experienced, or even prevent the damage if the research is timeously,” said Prof Van Schalkwyk.

A new cabinet can cost between R2-3 million, depending on the degree of sophistication. “Although controlled environment cabinets have been used for agricultural research for a long time, it has become costly to maintain them and even more impossible to purchase new ones,” said Prof Van Schalkwyk.

According to Prof Van Schalkwyk the cabinets were re-built by die UFS Electronics and Mechanisation Division. Some of the mechanisms were also replaced and computerised.

“The re-building and mechanisation of the cabinets were funded by the faculty and because the work was done by our own staff, an amount of about R1 million was saved. The maintenance costs will now be lower as the cabinets are specifically tailor made for our research needs,” said Prof Van Schalkwyk.

Where all monitoring was done manually in the past, the cabinets can now be controlled with a computer. This programme was designed by Prof Koos Terblans from the UFS Department of Physics.

According to Prof Van Schalkwyk the modernisation of the cabinets is part of the faculty’s larger strategy to get its instruments and apparatus up to world standards. “With this project we have proved that we can find a solution for a problem ourselves and that there are ways to get old apparatus functional again,” said Prof Van Schalkwyk.

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

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