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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

Small things matter
2017-01-17

 Description: Prof Felicity Burt  Tags: Prof Felicity Burt

Prof Felicity Burt (right) and Dr Dominique Goedhals
from the Department of Medical Microbiology and
Virology at the University of the Free State.
Photo: Anja Aucamp



The newly established virology section at the University of the Free State (UFS) boasts world class expertise. Not only are they one of just five laboratories in the country tasked with specialised HIV testing, but current research generates publications and subsidised funding.

The driving force behind this initiative is passionate and dedicated people who invest long hours into vital research. One such person is Prof Felicity Burt, who eloquently guides her students while making impressive progress within her own field of interest: vector-borne and zoonotic diseases. Prof Burt was recently awarded a research chair (2016-2020) to, among other areas, investigate medically significant vector-borne and zoonotic viruses currently circulating.

That means that her research focus is mainly on viruses transmitted by mosquitoes and ticks, and viruses transmitted from animals to humans. “Yes,” she laughs, “I catch mosquitoes and check them for viruses.”

Becoming familiar with different viruses
As if big screen moments like Outbreak and Contagion did not create enough virus paranoia, the world was recently bombarded by real world Ebola and Zika outbreaks. But awareness, Prof Burt says, is not a bad thing. “Years ago, when people heard that I did Ebola research, they got that distant look in their eyes, and changed the subject. One outbreak later, backed by many media reports, and Ebola is almost a household name. The same goes for the recent Zika virus outbreak in South America.”

The more familiar people become with these types of viruses, the better, Prof Burt feels. However, getting the right message across is not always that easy. The Zika virus outbreak, for example, was a very large outbreak and therefore presented large numbers of affected people. Generally, not everyone infected with an arbovirus will necessarily present with symptoms. But because vector-borne viruses can spread to new areas, surveillance and awareness is important. Here in Bloemfontein, Prof Burt and her team are establishing surveillance programmes.

Gaining knowledge and preventative measures
So, next time you get all wound up about a “biological disaster”, rest assured that competent people like Prof Burt and her colleagues continuously scan the environment to gain knowledge and develop preventive measures should any risks be looming. For example, developing next-generation vaccines that are very effective, but without risk – since they are not built on the virus itself, but only on the part of the virus that will induce an immune response.

Currently, Prof Burt is also looking into the relationship between the Sindbis virus and arthritis. It is clear that we can expect many exciting findings from the UFS’s new virology unit.

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