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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 students win Innovation prize
2007-11-05

 

From the left are, front: Kasey Kakoma (member of the winning team) and Ji-Yun Lee (member of the winning team); back: Prof. Herman van Schalkwyk (Dean of the Faculty of Natural and Agricultural Sciences at the UFS), Lehlohonolo Mathengtheng (member of the winning team) and Prof. Gerrit van Wyk (consultant from Technology Transfer Projects who arranged the first phase of the competition).
Photo (Leonie Bolleurs):
 

UFS students win Innovation prize

Prizes to the value of R100 000 were recently handed to students in the Faculty of Natural and Agricultural Sciences at the University of the Free State (UFS) during a prize winners function of the National Innovation Competition.
“The competition is sponsored by the Innovation Fund, which was established by the national Department of Science and Technology and is managed by the National Research Foundation (NRF). The competition seeks to develop innovation and entrepreneurship amongst students in higher education institutions,” said Prof. Teuns Verschoor, Vice-Rector of Academic Operations at the UFS.

Most universities in South Africa take part in the competition. “The first phase of the competition is per university where students can win prize money to the value of R100 000. The three winners then compete in the national competition, where prize money to the value of R600 000 can be won,” said Prof. Verschoor.

Eight teams from the Faculty of Natural and Agricultural Sciences competed in the local competition. The teams had to submit a business plan, which was judged by six external adjudicators.

The winning team from the Department of Microbial, Biochemical and Food Biotechnology submitted their business plan with the title: “Using bacteriophages to combat specific bacterial infections in poultry". The team, consisting of Kasey Kakoma from Zambia, Lehlohonolo Mathengtheng from South Africa, and Ji-Yun Lee from South Korea, were awarded R50 000 in cash. All three students are Master’s degree students in Microbiology in the Veterinary Biotechnology Research group at the UFS.

The team who came second was from the Department of Physics with team leader Lisa Coetzee and they received R30 000. The title of their project was “Light of the future”. The third prize of R20 000 went to Lizette Jordaan of the Department of Chemistry with a project entitled: “Development of a viable synthetic route towards a natural substrate with possible application in the industry”.

Prof. Gerrit van Wyk, former dean of the UFS Faculty of Natural and Agricultural Sciences and consultant for Technology Transfer Projects, annually drives this competition.

In his announcement of the winners of the first phase of the 2007 National Innovation Competition, Prof. Herman van Schalkwyk, Dean of the UFS Faculty of Natural and Agricultural Sciences, said innovation and entrepreneurship are important to stimulate and create sustainable economic growth in South Africa. “Through this competition universities get the opportunity to show to South Africa its capabilities in the arena of innovation and commercialisation of ideas,” he said.

To proceed to the second phase of the competition, the business plans of the three finalists from each qualifying higher education institution will be submitted for the national competition. The best three students from each participating institution will exhibit their innovations at the national awards ceremony early in 2008. The top ten entrants and subsequently the best three business plans from the total entries will then be short listed. The prize money won at the national competition has to be used for the commercialisation of the project or the founding of a company.

Media Release
Issued by: Lacea Loader
Assistant Director: Media Liaison
Tel: 051 401 2584
Cell: 083 645 2454
E-mail: loaderl.stg@ufs.ac.za  
5 November 2007
 

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