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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 keeps the power on

2015-06-24

At a recent Emergency Power Indaba held on the Bloemfontein Campus, support structures at the university met to discuss the Business Continuity Intervention Plan to manage load shedding on the three campuses of the UFS.

Currently, 35 generators serving 55 of the buildings have already been installed as a back-up power supply on the three campuses of the university. According to Anton Calitz, Electrical Engineer at the UFS, the running cost to produce a kWh of electricity with a diesel generator amounts to approximately three times the cost at which the UFS buys electricity from Centlec.

Planned additional generators will attract in excess of R4 million in operating costs per year. For 2015, the UFS senior leadership approved R11 million, spread over the three campuses. Remaining requirements will be spread out over the next three years. University Estates is also looking at renewable energy sources.

On the Bloemfontein Campus, 26 generators serving forty-one buildings are in operation. On South Campus, two generators were installed at the new Education Building and at the ICT Server Room. Lecture halls, the Arena, the Administration Building, and the library will be added later in 2015. Eight generators serving 12 buildings are in operation on the Qwaqwa Campus. In 2015, the Humanities Building, Lecture Halls and the heat pump room will also be equipped with generators.

Most buildings will be supplied only with partial emergency power. In rare cases, entire buildings will be supplied because the cost of connecting is lower than re-wiring for partial demand. According to Nico Janse van Rensburg, Senior Director at University Estates, emergency power will be limited to lighting and power points only. No allowances will be made for air-conditioning.

“Most area lighting will also be connected to emergency power,” he said.

Where spare capacity is available on existing emergency power generators, requests received for additional connections will be added, where possible, within the guidelines. The following spaces will receive preference:
- Lecture halls with the lights, data projectors, and computers running
- Laboratories for practical academic work and sensitive research projects
- Academic research equipment that is sensitive to interruptions
- Buildings hosting regular events

According to Janse van Rensburg, all further needs will be investigated. Staff can forward all emergency power supply needs to Anton Calitz at calitzja@ufs.ac.za

Staff and students can also manage load shedding in the following ways:

1. Carry a small torch with you at all times, in case you are on a stairwell or other dark area when the lights go out. You can also use the flashlight app on your phone. Download it before any load shedding occurs. This can come in handy if the lights go out suddenly, and you cannot find a flashlight. Load-shedding after dark imposes even more pressure on our Campus Security staff. We can assist them with our vigilance and preparedness by carrying portable lights with us at all times and by assisting colleagues.
2. Candles pose a serious safety risk. Rather use battery- or solar-powered lights during load shedding.
3. Ensure that your vehicle always has fuel in the tank, because petrol stations cannot pump fuel during power outages.
4. Ensure that you have enough cash, because ATMs cannot operate without electricity.
5. The UFS Sasol Library has study venues available which students can use during load shedding.
6. When arranging events which are highly dependent on power supply, especially at night, organisers should consult the load-shedding schedule before determining dates and preferably also make back-up arrangements. If generators are a necessity, the financial impact should be taken into consideration.

The senior leadership also approved a list of buildings to be equipped with emergency power supplies.

More about load shedding at the UFS:
Getting out of the dark
More information, guidelines and contact information

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