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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

UFS professor addresses genetically modified food in South Africa in inaugural lecture
2016-09-23

Description: Chris Viljoen inaugural lecture Tags: Chris Viljoen inaugural lecture

At the inaugural lecture were, from the left front,
Prof Lis Lange, Vice Rector: Academic;
Prof Chris Viljoen; Prof Gert van Zyl,
Dean: Faculty of Health Sciences; back: Prof Marius Coetzee,
Head of Department of Haematology and Cell Biology;
and Dr Lynette van der Merwe, Undergraduate
Programme Director.
Photo: Stephen Collett

The first genetically modified (GM) crops in South Africa were planted in 1998. Eighteen years later, the country is one of the largest producers of GM food in the world. Those in support of genetically modified crops say this process is the only way to feed a rapidly growing world population. But those who criticise GM food describe it as a threat to the environment and safety of the population. Who is right? According to Prof Chris Viljoen of the Department of Haematology and Cell Biology at the University of the Free State, neither position is well-founded.

GM crops play a vital role in food security

While GM crops have an important role to play in increasing food production, the technology is only part of the solution to providing sufficient food for a growing world population. The major genetically modified crops produced in the world include soybean, cotton, maize and canola. However, the authenticity of food labelling and the long-term safety of GM food are issues that consumers are concerned about.

Safety and labelling of GM food important in South Africa
In his inaugural lecture on the subject “Are you really going to eat that?” Prof Viljoen addressed the importance of the safety and labelling of GM food in the country. “In order for food to be sustainable, production needs to be economically and environmentally sustainable. On the other hand, food integrity, including food quality, authenticity and safety need to be ensured,” Prof Viljoen said. 

Labelling of food products for genetic modification was mandatory in South Africa, he went on to say. “It allows consumers the right of choice whether to eat genetically modified foods or not.” The Consumer Protection Act of 2008 requires food ingredients containing more than 5% of GM content to be labelled. 

GMO Testing Facility world leader in food diagnostic testing
In 1999, Prof Viljoen spearheaded research in developing a GM diagnostic testing platform, and in 2003, a commercial diagnostic platform for GM status certification, called the GMO Testing Facility, was founded. The facility is a licensed Eurofins GeneScan laboratory   a world leader in food diagnostic testing   and provides diagnostic detection and quantification of genetically modified organisms (GMOs) in grain and processed foods for the local and international market.

Molecular diagnostic technology the future of food integrity, authenticity and safety
With GM labelling now well-established in South Africa, the next challenge is to establish the use of molecular diagnostic technology to ensure that food integrity, including food authenticity and safety is maintained, said Prof Viljoen.

“To the question ‘Are you really going to eat that?’ the answer is ‘yes’, but let’s continue doing research to make sure that what we eat is safe and authentic.”

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