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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

Research on cactus pear grabs attention of food, cosmetic and medical industry
2015-02-18

Cactus pear
Photo: Charl Devenish

The dedicated research and development programme at the UFS on spineless cactus pear (Opuntia ficus-indica) – also known as prickly pear – has grown steadily in both vision and dimension during the past 15 years. Formal cactus pear research at the UFS started with the formation of the Prickly Pear Working Group (PPWG) in June 2002. It has since gone from strength to strength with several MSc dissertations and a PhD thesis as well as popular and scientific publications flowing from this initiative.

According to Prof Wijnand Swart from the Department of Plant Sciences, the UFS is today recognised as a leading institution in the world conducting multi-disciplinary research on spineless cactus pear.

Cactus pear for animal feed

Increasing demands on already scarce water resources in South Africa require alternative sources of animal feed – specifically crops that are more efficient users of water. One alternative with the potential for widespread production is spineless cactus pear. It is 1.14 x more efficient in its use of water than Old man saltbush, 2.8 x more efficient than wheat, 3.75 x more efficient than lucerne and 7.5 x more efficient than rangeland vegetation.

“Studies on the use of sun-dried cactus pear cladodes suggest that it has the potential to provide some 25% of the basic feed resources required by South Africa’s commercial ruminant feed manufacturing sector,” says Prof HO de Waal of the Department of Animal, Wildlife and Grassland Sciences at the UFS.

Until recently, research has focused extensively on the use of cactus pear as drought fodder. However, this is now beginning to shift, with growing interest in the intensive production of spineless cactus pear for other types of animal feed. One example is the spineless cactus pear fruit, produced seasonal, yielding large quantities of fruit in a relatively short period of a few months in summer. Unless kept in cold storage, the fruit cannot be stored for a long period. Therefore, a procedure was developed to combine large volumes of mashed cactus pear fruit with dry hay and straw and preserve it for longer periods as high moisture livestock feed, kuilmoes – a high water content livestock feed similar to silage.

Cactus pear and Pineapple juice
Photo: Charl Devenish

Cactus pear for human consumption

“In addition to its use as a livestock feed, cactus pear is increasingly being cultivated for human consumption. Although the plant can be consumed fresh as a juice or vegetable, significant value can be added through processing. This potential is considerable: the plant can be pickled; preserved as a jam or marmalade; or dried and milled to produce baking flour. It can also serve as a replacement of egg and fat in mayonnaise,” said Dr Maryna de Wit from the Department of Microbial, Biochemical and Food Biotechnology.

The extraction of mucilage from fresh cladodes can form a gelling, emulsifier, and fat-replacing agent commonly found in food products such as mayonnaise and candy. During an information session to the media Dr De Wit and her team conducted a food demonstration to showcase the use of the cladodes in a juice, chicken stir-fry, biscuits and a salad.

The extrusion of cactus pear seed oil provides a further lucrative niche product to the array of uses. These include high-value organic oil for the cosmetic sector, such as soap, hair gel and sun screens.

The cladodes and the fruit also have medicinal uses. It has anti-viral, anti-inflammatory, pain killing and anti-diabetic agents. It is also high in fibre and can lower cholesterol. The fruit also prevents proliferation of cells and suppresses tumour growth and can even help to reduce a hangover.

In South Africa the outdated perception of cactus pears as thorny, alien invaders, is rapidly disappearing. Instead, farmers now recognise that cactus pear can play a vital role as a high yielding, water-efficient, multi-use crop, said Prof de Waal and the members of the Cactus Pear Team.

Facebook photo gallery
Dagbreek interview with Dr Maryna de Wit  

Research on cactus pear (read the full story)

For more information or enquiries contact news@ufs.ac.za

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