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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

UFS takes steps to address power shedding
2008-01-31

The problem of power shedding was urgently discussed by the Executive Committee of the Executive Management (Exco) during its meeting yesterday.

A report was presented by Ms Edma Pelzer, Director: Physical Resources and Special Projects, and a consulting electrical engineer about possible short, medium and long term solutions for the UFS.

This includes (a) the possible installation of equipment (eg. power generators) and (b) operating procedures to ensure the UFS’s functionality despite power shedding.

We are also in contact with Centlec to bring about the best possible arrangements for the UFS regarding the power shedding. It is possible that refined power shedding schedules will be implemented within a few weeks or a month to ensure that there is minimal disruptions at the UFS (especially during evening lectures).

In the long term it is unaffordable to generate power for the whole campus to meet everyone’s electricity needs. Only critical points will be supplied with emergency power generators.

Emergency power generation for certain critical points have already been provided for (eg. the Callie Human Centre, the evacuation of large halls, computer services, critical long term research projects, etc.). We have been doing surveys since 2006 to determine the UFS’s preparedness for “normal” power failures. The extent of the current situation has, however, taken the whole country by surprise.

Certain urgent steps were decided on yesterday. A decision was made to immediately design emergency power systems and supply it to the new examination centre and large lecture halls such as the Stabilis, Flippie Groenewoud, Agriculture building, and possibly the West Block. The delivery and installation of these systems will, however, take from three to six months.

The UFS will have to manage despite the power shedding, even after the emergency power systems have been installed and we will not be able to function as normal. Every division must devise operating procedures to deal with the power shedding without jeopardising the quality of core functions.

Bloemfontein is luckier than many other cities because Centlec is able (so far) to keep to the published schedule to a large extent.

Plans are also being made to keep staff and students continuously informed via the UFS web site about expected power shedding schedules and risks of power shedding in the course of a day.

Exco requests every faculty and support service to think about suitable operational solutions for managing their work and meetings during a power shedding.

Every line head has instructions to urgently determine the situation and needs in his or her division and indicate what practical arrangements can and must be made to schedule work around the power shedding. Every line head must provide Exco with a status report within a week.

In this way critical areas in terms of core functions and high quality service delivery will be determined and receive attention. Security systems and the safety of staff and students will also receive specific attention - this includes the residences.

In the mean time the Department of Physical Resources will carry on with a wide-ranging investigation into the extent of needs and plans and will compile a budget for the solution thereof.

Prof. Teuns Verschoor, Vice-Rector: Academic Operations, and the deans had a meeting yesterday to discuss problems and possible solutions around the power shedding in eg. computer rooms, during evening lectures, and practical classes.

Options may include eg. alternative time slots (eg. weekends) or alternative halls (eg. at the Vista Campus) for evening lectures which are affected by power shedding, or adjusted teaching methods.

Staff is requested not to install their own power generators under any circumstances. It can be very dangerous when such apparatus are linked to a building’s electrical system. The safety of staff and students and the risks of fire or injuries must also be the highest priority under all circumstances.

The Department of Physical Resources is also in the process of investigating options such as smaller power generators or ‘UPS’ apparatus as part of a broader evaluation of needs and potential solutions.

Exco wants to ensure all staff and students that this matter is receiving urgent attention and will keep on receiving it.

If there are any practical solutions about dealing with the power shedding (such as alternative ways of working) you are invited to send an e-mail to: lightsout@ufs.ac.za  

 

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