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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.

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First Rand Foundation contributes funding towards students with disabilities
2017-01-02

 Description: First Rand Foundation Tags: First Rand Foundation

Photo: iStock

Bursary funding for eight students with disabilities at the University of the Free State was recently approved by the First Rand Foundation. The grant of R2 497 440 will be paid over three years: R800 000 (2016/17), R824 000 (2017/18), and R873 440 (2018/19).

This grant from the First Rand Tertiary Education Fund is a result of the negotiations between the UFS Office for Institutional Advancement and the First Rand Foundation (FRF).

Qualifying students with disabilities will be encouraged to apply for bursaries according to criteria and requirements set by the First Rand Foundation. The selection process will be handled by a panel from the UFS. The Centre for Universal Access and Disability Support (CUADS) at the UFS will be instrumental in the process of identifying students with disabilities who meet the criteria and requirements for funding.

CUADS already have a system in place to support students with disabilities in their studies and during exams. Students also have access to specialised exam and test venues for alternative test and exam procedures, as well as computer facilities.

Specialised support services include an amanuensis (scribe) service during tests and exams, accommodating extra time, individual tutor sessions provided in collaboration with the Centre for Teaching and Learning, South African Sign Language interpreter coordination, provision of accessible study material, and individual disability support.

 

“The centre aims to ensure that the university increasingly becomes a universally accessible environment that is welcoming and accepting to people with diverse abilities.”

According to Martie Miranda, Head of CUADS, the centre aims to ensure that the university increasingly becomes a universally accessible environment that is welcoming and accepting to people with diverse abilities. “Therefore disability awareness training and advocacy within the UFS, and specifically among staff members, is one of our priorities,” she said.

According to Thandeka Rantsi from the FRF, the company will furthermore support students in CUADS with regards to the needs ensuing from the #feesmustfall protests. “Exactly R34 000 was approved by the FRF for 14 students towards residence and meal expenses, as well as scribe and reader assistance during additional assessments,” she said.

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