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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

Power interruptions: Information for internal communication

2008-01-31

As part of the UFS’s commitment to address load shedding, the management would like to communicate the following:

The UFS mainly deals with the power interruptions by way of (a) the possible installation of equipment (e.g. generators) and (b) operational arrangements to ensure the functioning of the UFS in spite of power interruptions.

During the past week progress was made on both fronts. The information that follows resulted from a meeting of a task team of Physical Resources led by Mr Nico Janse van Rensburg, which took place on Monday 28 January (this task team naturally focuses on physical solutions) and a discussion by Exco on Wednesday 30 January 2008. Exco discussed the recommendations of the mentioned task team in respect of physical aspects, as well as the operational arrangements proposed by faculties.

Physical solutions

A Main Campus

1. New emergency power installations already approved:

Last week Exco gave its approval for the design and installation of emergency power equipment in all the large lecture-hall complexes to proceed immediately.

In all these cases

load surveys have been completed and a start has been made with the ordering of equipment and the process of appointing contractors. (Exco approved the adjustment of normal tender procedures in an attempt to expedite completion.)
generators with 20-30% more capacity than required for the current load are being ordered.
provision is being made for the connection of lights and at least one wall plug to the emergency power.
the expected construction time is 16 weeks (except in the case of the Flippie Groenewoud Building where it is 6 weeks).

The above-mentioned concerns lecture halls/ venues in the following buildings: Examination Centre, Flippie Groenewoud Building, Stabilis, Genmin and the Agriculture Building.

As far as the Agriculture Building is concerned, a larger generator (larger than required for lecture venues only) is being ordered in view of simultaneously providing essential research equipment (refrigerators, ovens, glasshouses) with emergency power within 16 weeks.

2. Investigation into the optimal utilisation of present emergency power installations

All the emergency power systems are being investigated on the basis of a list compiled in 2006 to determine whether excess capacity is available and whether it is possible to connect additional essential equipment or lights to it.

The electrical engineer warns as follows:
“Staff members must under no circumstances overload present emergency power points.

A typical example of this is a laboratory with 10 power points of which 2 points are emergency power outlets. Normally a fridge and freezer would, for example, be plugged into the two emergency power points, but now, with long load-shedding interruptions, a considerably larger number of appliances are being plugged into the power point by means of multi-sockets and extension cords. In the end the effect of such connections will accumulate at the emergency generator, which will then create a greater danger of it being overloaded and tripping, in other words, no emergency power will then be available.”

3. Requests and needs addressed directly to Physical Resources or reported to Exco via the line managers.

All the physical needs and requests addressed directly to Physical Resources or submitted to Exco via the line managers are being listed, classified and considered technically in view of their being discussed by the task team on Monday 11 February.
The information will (a) lead to recommendations to Exco regarding possible additional urgent emergency power installations, and (b) be used in the comprehensive investigation into the UFS’s preparedness for and management of long power interruptions.

Requests that can easily be complied with immediately and that fit into the general strategy will indeed be dealt with as soon as possible.

4. Purchase of loose-standing equipment: light, small, loose-standing generators, UPSs as solutions to/ aids during power interruptions

Exco approved that

a) faculties and support services accept responsibility themselves for the funding and purchase of loose equipment such as, for example battery lights, should they regard these as essential.
b) UPSs (uninterruptible power supplies) that faculties and support services wish to purchase to combat the detrimental effect of unexpected power interruptions on computer equipment) can (as at present) be purchased from own funds via Computer Services.
c) UPSs (uninterruptible power supplies) that faculties and support services wish to purchase to combat the detrimental effect of unexpected power interruptions on other types of equipment can normally be purchased from own funds with the consent of the line manager concerned.
Note: Please just make sure of the appropriateness of the equipment for a specific situation: it is not a power supply that can bridge a two-hour power interruption.)
d) small, loose-standing generators can be purchased from own funds via Physical Resources and installed under their supervision.
e) laptop computers can , where necessary, be purchased from own budgets. The availability of second-hand laptop computers must be taken into account.

B Vista

No major problems have been reported to date. The situation is being monitored and will be managed according to need. The same guidelines that apply to the Main Campus will naturally also apply to the Vista Campus.

C Qwaqwa

The situation is receiving attentions and solutions have already been found for most problems.

D General

1. All-inclusive project
A comprehensive investigation into the UFS’s preparedness for and management of long power interruptions will be launched as soon as possible. Available capacity will be utilised first to alleviate the immediate need. The needs assessment to which all faculties and support services have already contributed is already an important building block of the larger project.

2. Building and construction projects currently in the planning and implementation phase
The need for emergency power for projects such as the new Computer Laboratory is being investigated proactively and will be addressed in a suitable manner.

3. Liaison with Centlec
Attempts at direct and continuous liaison are continuing in an attempt to accommodate the unique needs of the UFS.

4. HESA meeting and liaison with other universities
A representative of the UFS will attend a meeting of all higher education institutions on 11 February. The meeting is being arranged by HESA (Higher Education South Africa) to discuss the implications for the sector, the management of risks and the sector’s response to government.

5. Internal communication
It is the intention to communicate internally after every meeting of the task team, which will take place on Mondays. Strategic Communication will assist in this regard.

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