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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

Research into veld fires in grassland can now help with scientifically-grounded evidence
2015-04-10

While cattle and game farmers are rejoicing in the recent rains which large areas of the country received in the past growing season, an expert from the University of the Free State’s Department of Animal, Wildlife, and Grassland Sciences, says that much of the highly inflammable material now available could lead to large-scale veld fires this coming winter.

Prof Hennie Snyman, professor and  researcher in the Department of Animal, Wildlife, and Grassland Sciences, warns that cattle and game farmers should be aware, in good time, of this problem which is about to rear its head. He proposes that farmers must burn firebreaks as a precaution.

At present, Prof Snyman focuses his research on the impact of fire and burning on the functioning of the grassland ecosystem, especially in the drier grassland regions.

He says the impact of fire on the functioning of ecosystems in the ‘sour’ grassland areas of Southern Africa (which includes Kwazulu-Natal, Limpopo, Mpumalanga, the Eastern Cape, and the Harrismith environs) is already well established, but less information  is available for ‘sweet’ semi-arid grassland areas. According to Prof Snyman, there is no reason to burn grassland in this semi-arid area. Grazing by animals can be effectively used because of the high quality material without having to burn it off. In the sourer pasturage, fire may well form part of the functioning of the grassland ecosystem in view of the fact that a quality problem might develop after which the grass must rejuvenate by letting it burn.

Prof Snyman, who has already been busy with the research for ten years, says quantified data on the impact of fire on the soil and plants were not available previously for the semi-arid grassland areas. Fires start frequently because of lightning, carelessness, freak accidents, or damaged power lines, and farmers must be recompensed for this damage.

The shortage of proper research on the impact of fires on soil and plants has led to burnt areas not being withdrawn from grazing for long enough. The lack of information has also led to farmers, who have lost grazing to fires, not being compensated fairly or even being over-compensated.

“When above-and below-ground plant production, together with efficient water usage, is taken into account, burnt grassland requires at least two full growing seasons to recover completely.”       

Prof Snyman says farmers frequently make the mistake of allowing animals to graze on burnt grassland as soon as it begins to sprout, causing considerable damage to the plants.

“Plant roots are more sensitive to fire than the above-ground plant material. This is the reason why seasonal above-ground production losses from fire in the first growing season after the fire can amount to half of the unburnt veld. The ecosystem must first recover completely in order to be productive and sustainable again for the long term. The faster burnt veld is grazed again, the longer the ecosystem takes to recover completely, lengthening the problem with fodder shortages further.  

Prof Snyman feels that fire as a management tool in semi-arid grassland is questionable if there is no specific purpose for it, as it can increase ecological and financial risk management in the short term.

Prof Snyman says more research is needed to quantify the impact of runaway fires on both grassland plant productivity and soil properties in terms of different seasonal climatic variations.

“The current information may already serve as valuable guidelines regarding claims arising from unforeseen fires, which often amount to thousands of rand, and are sometimes based on unscientific evidence.”

Prof Snyman’s research findings have been used successfully as guidelines for compensation aspects in several court cases.

 

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