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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

The solution to student food insecurity is a holistic approach
2017-02-10

Description: Dietetics read more Tags: Dietetics read more

Dr Louise van den Berg from the Department of
Nutrition and Dietetics says the University of the Free State
is taking steps to teach students how to budget and make
them aware how important food nutrition is.
Photo: Pixabay 

Research at the University of the Free State (UFS) has indicated that nearly 60% of students are victims of food insecurity and suffer from hunger most of the time. The research by the UFS Faculty of Health Sciences shows that a further 25% are food insecure but are not hungry most of the time.

Senior Lecturer in the Department of Nutrition and Dietetics, Dr Louise van den Berg, says food insecurity is common among student populations across the world. However, local research shows that it is almost double that of tertiary institutions in developed countries.

Food insecurity among students caught many people off-guard
Dr Van den Berg says in South Africa nobody had really looked at the problem until recently “It seems student food insecurity has caught many people off-guard.” She says people tend to think of tertiary students as a privileged group.

The research has now indicated how deep the problem really is on campus. The students that most likely go hungry are single, male, black or coloured, and are generally first-generation students.

They are also mostly undergraduates, those paying their studies from non-bank loans or bursary means, those not living with their parents or guardians or those that need to support somebody else financially.

The results further indicate that those that are likely to suffer from hunger seldom or never have enough money for food but have to borrow money for food, have to ask for food, sell items to get food or steal food.

“A healthy student is a
successful student.”

Bursary money send back home for parents to survive
Dr Van den Berg agrees that one of the main reasons for the situation is economic stress. Research has shown students rarely spend money on food when resources are scarce. Furthermore, parents of students studying with bursaries are not always able to fully support them on campus. Some students send bursary money back home for their parents to survive.

She says other factors that contribute to campus food insecurity are that all over the world universities have terminated catered food halls due to high costs. “To a large extent this has created a food desert for students and now they need to look after themselves.”

To throw money at the problem does not seem to be the answer. 

Students are food-uncertain beings
The research indicates that young people on campus do not know where to buy food, much less the correct, nutritional food they need. Dr Van den Berg says most universities are now aware of the problem and have been taking steps. This includes teaching students how to budget and making them aware how important nutrition is for their success and their responsibility for themselves.

Universities are also looking at private funding for food aid and food schemes. Dr Van den Berg says other solutions are the restructuring of bursary fees, student self-help initiatives and food gardens.

The Faculty of Health Sciences is taking the initiative to manage a food blog on the UFS website. It will also use other social media platforms to post food-preparation videos and recipes for students.

Dr Van den Berg says it is important to grow the 15.6% group of students who indicated they are food secure because a healthy student is a successful student.

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