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Prof Bradley Smith addresses matrimonial property and trust law complexities

29 February 2024 | Story VALENTINO NDABA | Photo Stephen Collett

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 implements access control measures on our Bloemfontein Campus

2014-11-21

Photo: Hannes Pieterse

Online Application form: non personnel

Map with access gates on the Bloemfontein Campus

Accessing the Bloemfontein Campus from 3 November 2014

Access control during major events on the Bloemfontein Campus

Q&A

The University of the Free State (UFS) has been tightening security measures on its Bloemfontein Campus for quite some time now. Purposefully, we have consolidated several safety measures to keep our students, staff and visitors – the heartbeat of our university – protected.

Our most significant step in this endeavour is now in the process of implementation. All five entrance gates to the campus are being equipped with strict access control.

The first phase of the process was implemented beginning of August 2014. Gates 2 (Badenhorst Street) and 4 (Furstenburg Street) were equipped with card readers. Only persons with valid access cards can enter and leave through these gates. Existing staff and student cards are equipped to be read by the short-distance card readers at the gates in order to activate the booms.

At this stage, staff and students are swiping their cards against the card readers at Gates 2 and 4 or holding it not further than 20 mm from the reader for the boom to open. Card holders now physically stop in front of the boom in order to get access to the campus.

The duel-frequency card:

The dual-frequency cards available at the Card Division on the Thakaneng Bridge are currently out of stock. New cards will be delivered on Friday 14 November 2014.

The special offer of R30 per access card has been extended to the end of November 2014. To qualify for this offer, staff and students may pay the R30 for a dual-frequency card at the bank or cashiers on the Thakaneng Bridge no later than 28 November. The cost of dual-frequency cards will increase to R60 per card from 1 December 2014.

Please note that only people with vehicles need to apply for dual-frequency cards.

Students and staff will, however, still be able to gain access to the Bloemfontein Campus with their current cards (in the case of staff and students who haven’t purchased dual-frequency cards yet). As is currently the practice at the gates in Furstenburg and Badenhorst Streets, you will have to stop when you reach the boom, swipe your card past the card reader, the boom will open and you will be able to drive through.

Staff and students using their dual-frequency cards should:

-       Reduce speed
-       Hold the card in a vertical position at the driver’s side window, in the direction of the long-distance reader (see photo)

It is therefore not necessary to stop in front of the boom. On holding your card upright, in line with the card reader, the gate will open automatically and you will be able to drive through (keep your card outside your window; the card reader cannot operate through tinted windows).

Please note that this arrangement only applies to incoming lanes. On leaving the campus, the card has to be swiped. This is due to the number-plate recognition technology installed at exits for additional security.

If the long-distance reader does not work, the dual-frequency card can still be used at a tag reader.

Applying for your new card:

Electronic fund transfers: Absa Bank: 1 570 8500 71, Ref: 1 413 07670 0198, OR pay the R30 at the UFS Cashiers, Thakaneng Bridge. Please note that the price of the cards will increase to R60 from 1 November 2014.

Take your existing personnel or student card, together with proof of payment, to the UFS Card Division, Bloemfontein Campus, Thakaneng Bridge, to have your photo taken and your new dual-frequency card issued.

Permission to access specific UFS buildings or facilities linked to your existing card, will be automatically linked to the new card.

The new card is marked ‘dual’ on the back in the right, bottom corner.

The UFS Cashiers will provide assistance between 09:00 and 14:30, and the UFS Card Division between 09:00 and 15:00.

Implementation of full access control

Full access control will be implemented on the UFS’s Bloemfontein Campus from 3 November 2014. This means that access control will be implemented at all gates on the Bloemfontein Campus.

Who is using which gate? See Q&A for more information.

Gate 3 (Wynand Mouton Drive) is earmarked for use by official card holders. These include students, staff and persons doing business on campus. Parents dropping and fetching their children for sports, as well as service providers of the UFS, such as architects, may apply for valid cards. These persons will have to provide proof that they have business on campus (complete online application form and sign declaration).

All visitors to the campus will be referred to the Visitor’s Centre at Gate 5 (DF Malherbe Drive). This include, among others, parents, family and friends of students, as well as conference delegates. It is estimated that the Visitor’s Centre will be completed at the end of November (note that the gate at DF Malherbe Drive will be operational by 3 November 2014). Visitors will sign in at the Visitor’s Centre and, depending on the business they have on campus, they will only be allowed on campus for a certain period of time.

•    Lane 1 at Gate 5 will be used by visitors and service providers to enter the campus. Only card holders will be able to use lane 2.
•    Buses and trucks can also enter the campus through Gate 5.

The construction at the Main Gate at Nelson Mandela Drive is to build one extra lane for incoming traffic. The project is estimated to be completed at the end of October 2014.

•    For outgoing traffic, lane 1 (furthest from the guardhouse) and lane 2 will only be used by card holders and lane 3 (closest to the booth) will be used by service providers.
•    For incoming traffic, lanes 2 and 3 were set aside for use by only service providers. Lanes 1 and 4 will be used by only card holders.

Pedestrians

All gates for motorists will also be equipped with a pedestrian thoroughfare on completion of the project. Persons using these pedestrian gates also need to use their cards to get access to the campus.

Pedestrians who are visitors, but aren’t in possession of a valid access card, should please go to the Visitor’s Centre at the gate in DF Malherbe Drive where they will be helped.

More information

For more information on access control at the UFS, please watch our videos and read the Q&A or e-mail your enquiries to accesscontrol@ufs.ac.za.

Issued by: Lacea Loader (Director: Communication and Brand Management)
Tel: +27(0)51 401 2584 | +27(0)83 645 2454
E-mail: news@ufs.ac.za

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