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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

Postgraduate student to conduct research on maize quality at Michigan State University
2017-03-27

Description: Student maze research Tags: Student maze research

Schae-Lee Olckers, master’s student in the
Department of Microbial Biochemical and
Food Biotechnology.
Photo: Supplied

Schae-Lee Olckers, a master’s student in the Department of Microbial Biochemical and Food Biotechnology at the University of the Free State (UFS), will be travelling to the US in a few weeks’ time. For the next two years she will be doing research at the Michigan State University (MSU) at its Department of Food Science, working on wheat quality and its baking properties.

Increase the nutritional value of maize
The title of her master’s research project is: “The influence of low and optimal nitrogen conditions on the nutritional value of quality protein maize”. She is focusing on the influence of environmental conditions on the nutritional value of maize.

New hybrids of maize production developed

Olckers said: “I chose to start my research on this specific topic in my honours year because maize is the main staple crop in South Africa, as well as in the rest of Africa. Therefore, micronutrient malnutrition is a major concern for developing countries as well as for poor people who rely on it as a major food source. I found it interesting that these breeding programmes that are being developed for new hybrids of maize for production are focusing on increasing the nutritional value of maize and can therefore help eliminate micronutrient malnutrition in some populations of poor communities,” she said.

Prof Perry Ng will be her research supervisor. He is an affiliated professor at UFS in the division of Plant Breeding. “I am very excited about the opportunity to travel and to gain experience working with a well-known cereal scientist. The work he does is also closely associated with my research,” said Olckers.

Her supervisors at UFS are Profs Garry Osthoff and Maryke Labuschagne from the Departments of Microbial Biochemical and Food Biotechnology and Plant Sciences respectively.

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