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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

Access to the Bloemfontein Campus
2015-04-02

Access Control Made Easy

The first phase of access control at the University of the Free State (UFS) was implemented in August 2014. The aim of this initiative is to tighten security measures on the Bloemfontein Campus.
 
Since November 2014, access control has been implemented at all five gates on the Bloemfontein Campus. These are:

  • The Main gate in Nelson Mandela Drive (Gate 1)
  • The gate in DF Malherbe Drive (Gate 5)
  • The gate in Wynand Mouton Drive (Gate 3) 
  • The gate in Furstenburg Street (Gate 4)
  • The gate in Badenhorst Street (Gate 2)

Here is some useful information about the access control system:

1. Remember your access card when you enter the campus

Dual-function cards (with distance reader compatibility) will make your movement through the gates more convenient. The university’s access system works automatically with remote or swipe action. Please make sure that you drive close to the reader or, better still, get the dual-frequency card to manage the distance between your vehicle and the remote card reader.

As of 23 March 2015, the extra security staff, who have been assisting at the gates since the implementation of access control on the Bloemfontein Campus, are no longer manning the card readers at the gates. Therefore, persons without cards will be able to enter the campus only at the one gate in DF Malherbe Drive where the Visitors Centre is situated. They will be referred to the Visitors Centre, where a day visitor’s card will be issued to them. You will need to produce a formal identification document (e.g. ID book, driver's licence).

Security will continue their normal duties at the guardhouses for the various gates on the campus.

2. Where do I get an access card?

You can apply at the university’s Visitors Centre front desk by producing your positive identification (ID book/passport/driver’s licence) and proof of payment for your access card.

You will then be directed to the Thakaneng Bridge where you will be able to collect your access card.

  • Go to the Cashier on the Thakaneng Bridge and pay your R65 for the dual-frequency card
  • Take your receipt, together with your existing card (if you have one), to the Card Division on the Thakaneng Bridge (next to Mellins Optometrists)
  • A new photo will be taken of you at the Card Office for your new card. Your new card will then be issued immediately.

Currently, there is a sufficient stock of the dual-frequency cards available at the Card Division on the Thakaneng Bridge.
 
Alternatively, you can apply online for your access card: http://apps.ufs.ac.za/cardapplication/application.aspx

Make sure you have the following documents ready to attach when completing the online form:

  • Copy of positive identification: ID/Driver's Licence/Passport
  • Signed declaration (http://supportservices.ufs.ac.za/dl/Userfiles/Documents/00007/4668_eng.pdf) by your service provider/employer (if you are a service provider) or a letter of confirmation from your spouse/partner/relative/coach/relevant UFS staff member or student in cases where you have to visit, pick-up or drop off your spouse/partner/relative frequently on the UFS Bloemfontein Campus.

Cost: R65 for a long-term card and free of charge for short-term visits and conference delegates. Pay at the Cashier on the Thakaneng Bridge or at Absa Bank, Account Number: 1 570 8500 71, Ref: 1 413 07670 0198.

3. Cutoff Date: 7 April 2015

After 7 April 2015, no pedestrian or motorist will be able to enter the campus without a valid access card. Persons without access cards will have to enter the campus at the gate in DF Malherbe Drive where the Visitors Centre is situated. You will then be referred to the Visitors Centre where you will have to apply for a day visitor’s card. It is important to note that no one will be able to enter the campus at the Visitors Centre without a formal identification document (e.g. ID book, driver's licence).

4. Dual-frequency card simplifies access to the campus

It is important to have your card ready on entering the campus.

This card will simplify access to the campus considerably, as the card reader will read the card when it is held in a vertical position at the driver’s side window in the direction of the distance reader. Please do not place the card on the dashboard. There is an antenna wire in the card. If the card is placed on the dashboard, you are not exposing the card surface to the reader, and that might influence the antenna’s response to the reader.

Remember, the distance between the reader and the boom is only a few metres.  If you approach the reader at a ’high’ speed, you are not allowing the system to identify your card, match it to the entry in the database, check if you are ‘legal’, and then send a signal to open the boom. 

All five gates are equipped with distance readers. Within the next three weeks, two extra distance readers will also be installed at the Main Gate in Nelson Mandela Drive.
 
Please note that the dual-frequency card is needed only when you enter the campus with a vehicle and you want to activate the distance reader. All the older cards will continue to work at the tag readers. 

5. Use alternative gates

At times, some of the gates carry more traffic than others, especially with the peak morning and afternoon traffic. Gates with less traffic include:

  • The gate in Badenhorst Street
  • The gate in DF Malherbe Drive
  • The gate in Nelson Mandela Drive

You are welcome to make use of one of these alternative gates.

6. Pedestrians

No pedestrian will be able to enter the Bloemfontein Campus without a valid access card. If you have left your card at home or have lost it, you should enter the campus at the gate in DF Malherbe Drive where the Visitors Centre is situated. You will be referred to the Visitors Centre where you can apply for a day visitor’s card. You will still need to produce a formal identification document (e.g. ID book, driver's licence).

7. More information

Email: visitorscentre@ufs.ac.za
Visitors Centre front desk: Tel: +27 51 401 7766 (Mondays-Fridays 07:45-16:30)
Card Division: Tel: +27 51 401 2799 (Mondays-Fridays 07:45-16:30)
Protection Services duty room: +27 51 401 2634 (24 hours)

 

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