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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

Reclassification of giraffe status pivotal in public action, says UFS researcher
2016-12-08

Description: Reclassification of giraffe status  Tags: Reclassification of giraffe status  

Dr Francois Deacon, specialised researcher
in the Department of Animal, Wildlife, and
Grassland Sciences at the University of the Free State.
Photo: Supplied

Great news for those who care about the conservation of giraffes is today’s (8 December 2016) announcement by the International Union for the Conservation of Nature (IUCN) that giraffes are now classified as ‘Vulnerable’. The species, formerly classified as ‘Least Concern’ on the IUCN Red List — an index on the likelihood of extinction of animals worldwide — is threatened with extinction.

“Until recently, few people were aware of the situation facing giraffes. It is time to show the world giraffe numbers are in danger. This reclassification by the IUCN is pivotal to get the public to stand up and take action for giraffes,” said Dr Francois Deacon, specialised researcher in the Department of Animal, Wildlife, and Grassland Sciences at the University of the Free State (UFS).

Research is essential to develop effective conservation plans for a species

Key to this announcement was the status report submitted by Dr Deacon. He was the lead author responsible for the submission of the Southern African Giraffe subspecies (Giraffa camelopardalis giraffa) status report that was part of the larger species report submitted for review by the (IUCN). The UFS has been doing many research projects in the past couple of years on giraffe-related issues and topics to address this problem.

The UFS is one of only a few universities in Africa that is committed to studying giraffes to ensure the conservation of this species for generations to come.

“The reclassification of giraffes to ‘Vulnerable’
status, by the IUCN, is pivotal to get the public
to stand up and take action for giraffes.”

A 40% decline in the giraffe population over the past two decades is proof that the longnecks are officially in trouble. According to Dr Deacon, this rate of decline is faster than that of the elephant or rhino. The main reasons for the devastating decline are habitat loss, civil unrest and illegal hunting.

Dr Deacon, pioneer in the use of GPS technology to study giraffes and their natural habitat, said “This vulnerability clearly stipulates we are quickly losing grip on our last few natural populations”. He and a team of researchers at the UFS in South Africa are leading various research and conservation projects to help save the last remaining giraffes in Africa.

Giraffes moved from ‘least concern’ to ‘vulnerable’ on the Red List

The IUCN, a health check for our planet, is the highest level at which decision-makers can prove how many species (fauna or flora) are surviving or not. The update from ‘Least Concern’ to ‘Vulnerable’ on the Red List was released at the 13th Conference of the Parties to the Convention on Biological Diversity in Cancun, Mexico.

A wildlife documentary, Last of the Longnecks clearly shows how the number of giraffes has plummeted in the past two decades from 154 000 to fewer than 98 000 today — with numbers of some giraffes, such as Kenya’s reticulated giraffe, declining by as much as 80%.  

Any individual or institution that wants to make a contribution relating to giraffe research can contact Dr Deacon at the UFS on deaconf@ufs.ac.za.

 

In other media:

Announcement on BBC news: http://www.bbc.co.uk/news/science-environment-38240760
Time: http://time.com/3622344/giraffe-extinction/
The Telegraph: http://www.telegraph.co.uk/science/2016/12/08/giraffes-now-facing-extinction-warn-conservationists/
ABC News: http://abcnews.go.com/International/giraffes-danger-extinction-numbers-dropped/story?id=27334959
theguardian: https://www.theguardian.com/environment/2016/dec/08/giraffe-red-list-vulnerable-species-extinction
Aol: http://www.aol.co.uk/news/2016/12/07/giraffes-in-danger-of-extinction-as-population-plunges-by-up-to/  

 

Former articles:

18 November 2016: Studies to reveal correlation between terrain, energy use, and giraffe locomotion
23 August 2016:
Research on locomotion of giraffes valuable for conservation of this species
9 March 2016:
Giraffe research broadcast on National Geographic channel
18 September 2015:
Researchers reach out across continents in giraffe research
29 May 2015:
Researchers international leaders in satellite tracking in the wildlife environment

 



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