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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 helps farmers save with irrigation
2017-02-15

Description: Irrigation research Tags: Irrigation research

Marcill Venter, lecturer in the Department of
Agricultural Economics at the University of the
Free State, has developed the mathematical
programming system, Soil Water Irrigation
Planning and Energy Management in order to
determine irrigation pump hours.
Photo: Rulanzen Martin

Her advice to farmers is that they should make sure they are aware of the total cost (investment and operating costs) of an irrigation system. In most cases the investment cost is low, but the operating cost over the lifetime of the system is high.

“It is very important to have a look at the total cost and to install the most economic system,” says Marcill Venter, lecturer at the University of the Free State (UFS), who has done research on the economic sustainability of water-pipe systems.

Irrigation systems important components for farming
This research comes at a time when many farmers are relying on their irrigation systems due to persistent drought and low rainfall during 2016. South Africa has also experienced an abnormal increase in electricity tariffs in recent years. Due to tariff increases which threaten the future profitability of irrigation producers, the Water Research Commission (WRC) has launched and financed a project on the sustainable management of irrigation farming systems. “I had the opportunity to work on the project as a researcher,” says Venter.

The heart of every irrigation system is the water pipes that bring life to crops and livestock, and this is what Venter’s research is about. “Water pipes are part of the whole design of irrigation systems. The design of the system impact certain factors which determine the investment and operating costs,” she says.

Mathematical system to help farmers
Venter and Professor Bennie Grové, also from the Department of Agricultural Economics at the UFS, designed the Soil Water Irrigation Planning and Energy Management (SWIP-E) programming model as part of the WRC’s project, as well as for her master’s degree. “The model determines irrigation pump hours through a daily groundwater budget, while also taking into account the time-of-use electricity tariff structure and change in kilowatt requirements arising from the main-line design,” says Venter. The model is a non-linear programming model programmed in General Algebraic Modeling System (GAMS).

Design of irrigation system important for sustainability

The main outcome of the study is that the time-of-use electricity tariff structure (Ruraflex) is always more profitable than the flat-rate structure (Landrate). The interaction between the management and design of a system is crucial, as it determines the investment and operating costs. Irrigation designers should take the investment and operating cost of a system into account during the design process. The standards set by the South African Irrigation Institute (SAII) should also be controlled and revised.

Water-pipe thickness plays major role in cost cuts
There is interaction between water-pipe thickness, investment and operating costs. When thinner water pipes are installed, it increases the friction in the system as well as the kilowatt usage. A high kilowatt increases the operating cost, but the use of thinner water pipes lowers the investment cost. Thicker water pipes therefore lower the friction and the kilowatt requirements, which leads to lower operating costs, but thicker pipes have a higher investment cost. “It is thus crucial to look at the total cost (operating and investment cost) when investing in a new system. Farmers should invest in the system with the lowest total cost,” says Venter.

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