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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 to accredit providers of Off-Campus Accommodation to students in Bloemfontein
2017-06-30

The University of the Free State (UFS) has embarked on a process to accredit off-campus accommodation service providers in Bloemfontein who provide accommodation to its students.

“The decision to accredit off-campus accommodation service providers comes from a concern from the university management about the safety of students and the conditions under which some of our students live in off-campus accommodation. Student accommodation is a significant aspect of the success of the UFS and consequently good quality accommodation is important for each individual student to be successful in his/her studies,” says Mr Quintin Koetaan, Senior Director: Housing and Residence Affairs at the UFS.

The accreditation process entails a list of primary requirements, drafted with the cognisance of the Mangaung Metropolitan Municipality, in terms of off-campus accommodation to which private providers must adhere in order to be accredited by the university. The requirements are in line with the Policy on the Minimum Norms and Standards for Student Housing at Public Universities (Government Gazette 39238, dated 29 September 2015).

According to Koetaan, the norms and standards as set out in the policy establish the foundation and assessment criteria for such accreditation of service providers by the UFS. “It has become necessary for the UFS to have a policy on off-campus accommodation, in order to protect the rights and interests of our students and that of the university,” says Koetaan.

Some of the primary requirements for accreditation by the UFS include the number of students that may be accommodated in each room, the quality of kitchens and kitchenettes, the number of ablution facilities, the existence of common rooms and house rules, general maintenance and cleaning, compliance with  relevant national, regional, and municipal legislative requirements regulating health and safety, provision for adequate access to the facility/establishment in case of medical and/or psychological emergency assistance being required by students, and the provision for access to emergency electricity and water facilities. Off-campus private accommodation service providers must also be in possession of approved Municipal building plans of their student accommodation facilities, as well as evidence confirming their compliance with these plans.

“Landlords and agents are also advised to become more involved in their student homes and to ensure that their properties are in good condition and secure enough for students to live in,” says Koetaan.

Off-campus private accommodation service providers have until 31 July 2017 to apply for accreditation. More information and application documentation for accreditation can be obtained by sending an email to housing@ufs.ac.za

Released by:
Lacea Loader (Director: Communication and Brand Management)
Telephone: +27 51 401 2584 | +27 83 645 2454
Email: news@ufs.ac.za | loaderl@ufs.ac.za
Fax: +27 51 444 6393

 

 

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