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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

Getting out of the dark

2015-04-28

Photo: Leonie Bolleurs

Since 2008, the University of the Free State has been busy with the planning and implementation of projects to reduce the impact of load shedding. To date, the cost of these projects has run to R6 million. They have been done primarily to ensure that the academic programme does not suffer damage as a result of the increasing interruptions in the power supply that are continuing this year.

The university’s greatest concern has been the provision of emergency power to the lecture halls and laboratories.

Thus far, 35 generators are servicing 55 buildings on the three campuses of the UFS. This includes 26 generators on the Bloemfontein Campus, eight on the Qwaqwa Campus in the Eastern Free State, and one generator on the South Campus in Bloemfontein. The generators are already in service, and are maintained in working order.

Since 2010, the university has also ensured that all newly-built academic buildings are equipped with emergency power supplies.

On the South Campus in Bloemfontein, the new lecture-hall building and the computer laboratory are equipped with emergency power, while the installation of emergency generators in other buildings is under way. The majority of the buildings on the Qwaqwa Campus in the Eastern Free State are equipped with emergency power supplies.

In the meantime, the UFS management has approved a further R11 million for the installation of additional generators on the three campuses. A further R1.5 million has also been approved for the purchase of two mobile generators.

To extend the work already done, the main task will be the installation of more generators on the Bloemfontein Campus to ensure that lecture halls with emergency power will be available for the centrally-arranged timetables, and to ensure that more of the critical laboratories will be provided with emergency power.

There are still some important buildings and halls on the Bloemfontein Campus that must be supplied with emergency power. However, it is a costly process and must be brought into operation gradually. The further implementation of emergency power depends on the delivery of equipment. The university is also investigating alternative solutions for power provisioning, including solar power.

Generators with spare capacity are optimally deployed to satisfy the lower needs of the campus, including the Odeion, the ANNEX at Microbiology, the Stabilis ANNEX, the Agriculture Building, the UV-Sasol library, and the Francois Retief Building.

In addition, the UFS is busy on all campuses, coupling area lighting, including

street lights and pedestrian walkways, to existing generators. Procedures for the operation of mechanical equipment, such as entrance gates, lifts, and so on, are currently being dealt with on all campuses. Continuous power sources for certain ICT equipment will be installed on all campuses to protect it against power surges.

Staff and students can also equip themselves with the necessary knowledge to manage load shedding in their specific areas of work and study. It is always helpful to know who to contact. The following list with guidelines and contact numbers has been compiled to assist you:

1. In an emergency, call Protection Services. This line will continue to operate, regardless of whether the power is on or off.
2. Avoid using lifts just before planned load shedding. Some lifts have emergency power packs which will bring the lift to the nearest floor and open the doors. If you still get stuck in a lift during a power outage, use your cellphone to call Protection Services. While you're waiting, stay calm and be patient.
3. If the access control systems in your building stop working after load shedding, contact Protection Services.
4. The students and staff members who are most at risk during load shedding are those in wheelchairs or with other mobility limitations. As far as possible, plan ahead to avoid being stuck on a floor or in a room that is difficult to access when load shedding is imminent. Please contact Protection Services if you need assistance.
5. During a fire, alarms WILL go off. Alarms are not power driven, but battery driven. For assistance, contact Protection Services.
6. The main UFS Switchboard (Bloemfontein Campus +27(0)51 401 9111 and Qwaqwa Campus +27(0)58 718 5000) will continue to operate during load shedding.

Contact details of Protection Services:

Bloemfontein Campus: +27(0)51 401 2634/2911
Qwaqwa Campus: +27(0)58 508 5460/5175
South Campus: +27(0)51 5051217

Communication and Brand Management will make information available on the UFS web, Facebook page, Twitter, Blackboard and the intranet. Get the load shedding schedule from Eskom’s webpage (http://loadshedding.eskom.co.za/). The Bloemfontein Campus falls in group 4 and the South Campus falls in group 2 in Centlec’s load shedding schedule.

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