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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

Quadriplegic doctor obtains degree against all odds
2016-11-25

Description: Dr Swartbooi CUADS Tags: Dr Swartbooi CUADS

Dr Swartbooi faces each day with vigour and
resilience. Dr Swartbooi analyses images on
a screen in the Clinical Imaging Laboratory
at Universitas Academic Hospital.

Photo: Oteng Mpete

Life’s defining moments are when perseverance is rewarded. It is not easy to swim against the tide. However, for Dr Ambrotius Swartbooi from the University of the Free State’s Department of Clinical Imaging Sciences, it became his moment of glory. In 2006, Dr Swartbooi suffered a spinal injury from a near-fatal car accident which left him paralysed and a quadriplegic.

The strength to carry on

“You have one of two choices:
to lie down and give up,
or to pick yourself up”
—Dr Swartbooi

Dr Swartbooi spent close to six months, recovering from his injuries. “You have one of two choices: to lie down and give up or to pick yourself up,” said Dr Swartbooi. He would inspire other patients with similar injuries to reintegrate into society despite their new-found circumstances.

Fortunately, not all was doom and gloom; in 2007 Dr Swartbooi got married, and his wife has supported and inspired him to continue pursuing his dreams. Dr Swartbooi completed his undergraduate medical degree at the UFS, and in 2014 decided it was time to complete his studies and pursued an MMed specialising in Diagnostic Radiology.

To treat or not treat: that is the question

After all his trials and tribulations, Dr Swartbooi will be receiving his MMed Diagnostic Radiology degree at the UFS Summer Graduation ceremony in December 2016. His research focuses on intracranial aneurysm size interventions. He discovered that there were discrepancies between international standards for intervention and African standards for intervention.

The research inspects what should be treated and how it should be treated. He found there was a gap in African literature into the size of aneurysms.

Champion of survival: Where to from here?

“That’s a good question,” said Dr Swartbooi. “Slowly from here. I still need to work on getting my full accreditation from the Health Professions Council of South Africa (HPCSA).” He plans to continue fuelling his passion for teaching. “There is no place better to teach than at an academic hospital.”

Dr Swartbooi commended the efforts of the Centre for Universal Access and Disability Support (CUADS), which assisted him in writing all his exams. “I want to be able to make a fulfilling and lasting impact on people but also to give the best medical service that I can,” concluded Dr Swartbooi.

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