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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

Renewable energy systems an economical investment for the UFS
2017-06-14

Description: Renewable energy  Tags: Renewable energy

The Qwaqwa Campus Arena equipped with freestanding
roof solar panels.
Photo: iFlair Photography

Renewable energy systems are said to be very expensive to implement initially, but in the long run they provide high economic returns.

With their decision to install renewable energy, the University of the Free State Department of Facilities Planning has now also adopted this innovative technology. They have chosen less capital-intensive solar power-generating options to generate electricity in various buildings and parking areas on all three UFS campuses.

“As per the UFS Energy Management Policy, all designs incorporate efficient, renewable energy sources varying from LED lights to solar power,” says Anton Calitz, Electrical Engineer in University Estates’ Department of Facilities Management.

South Campus taking the lead in renewable energy usage
In December 2016, a total of 26 solar-driven LED street-light poles were installed at the recently built Legae Residence’s parking area and the perimeter security area on the South Campus. This low-maintenance system improves security after dark and is independent of the national power supply, which is an important advantage during power outages. With no requirements for major earthworks and cable setting, operational costs are reduced.

The recently built infrastructure also takes pride in being the first to have a greywater system installed.  This system will also be installed at three other residences on the Bloemfontein Campus in 2017. Greywater is made up of bath, shower, and bathroom sink water. The water is reused for toilet flushing, as well as for irrigation purposes.

Various UFS electrical operations to depend on solar power
On the Bloemfontein and Qwaqwa Campuses, the computer laboratories as well as the Thakaneng Bridge Student Centre and the projected Afromontane Research Centre will be equipped with freestanding roof solar solutions during 2017. These systems are designed to operate independently of the power grid (Eskom).

The systems only operate during sunlight hours when the PV solar panels are heated by the sun, making them suitable for operations such as ventilation fans, water pumps, and small circulation pumps for solar thermal water-heating systems.

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