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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

Ground-breaking project scores Renewable Energy Award
2017-10-29

Description: ' 000 University Estates award Tags: University Estates award 

Marcel Theron, Former President: HEFMA; Nico van Rensburg, Senior Director:
University Estates (UFS); and Maureen Khati, Project Manager: Facilities
Planning (UFS) attending the HEFMA awards ceremony in Pretoria.
Photo: Supplied

University Estates at the University of the Free State (UFS) were recently awarded for their amazing initiative to install and operate photovoltaic (PV) and greywater systems on all three of its campuses. They were awarded by the Higher Education Facilities Management Association of Southern Africa (HEFMA), an association of facilities managers operating in the higher-education sector in the Southern African region. All universities and universities of technology in the country form part of this association, which promotes excellence in the planning, construction, maintenance, operations, and administration of educational facilities.

Nico van Rensburg, Senior Director of University Estates, says, “I want to thank HEFMA for this amazing award which motivates for much more and also opens up the doors for so many more opportunities.”

Solar and greywater systems installed at various buildings

In December 2016, 26 solar-driven LED street-light poles and a greywater system were installed at the Legae Residence on the South Campus. Greywater is made up of bath, shower, and bathroom sink water. The water is reused for toilet flushing, as well as for irrigation purposes.

On the Bloemfontein and Qwaqwa Campuses, the computer laboratories as well as the Thakaneng Bridge Student Centre and the expected Afromontane Research Centre have freestanding solar solutions mounted on their roofs. These systems are designed to operate independently of the power grid (Eskom) during sunlight hours when the PV solar panels are heated by the sun.

Teamwork equals ground-breaking results

“This was truly a team effort with a variety of role players who contributed,” says Van Rensburg. He believes that higher education can do more to make use of other environmentally sustainable initiatives, and to go beyond just erecting and renovating buildings.

The UFS executive management is also extremely proud of the team that were involved in the project. Prof Nicky Morgan, former Vice-Rector: Operations, says, “It’s been extraordinary what we could achieve at all three campuses with such a small team.” Nadeem Gafieldien, Director: Property Services at Stellenbosch University, showered the UFS with praise. “This is truly ground-breaking for Higher Education (HE) and you are truly leaders in these renewable energy projects in the HE sector.” He says we need to demonstrate to other institutions in the HE sector that this is the future and that it makes the institutions both environmentally and financially sustainable.

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