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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 shortage: Measures to be implemented immediately

2008-01-31

1. In order to avoid the further implementation of power sharing, electricity companies countrywide are requiring, in addition to measures announced for domestic consumers, that major power consumers save a certain percentage of power.

2. Die UFS is one of the 100 largest clients of Centlec, the local electricity distribution company. During a meeting last Thursday evening with the 100 largest clients, it was indicated that the UFS had to deliver a saving of 10%. The details are as follows:

Provision is made to a certain extent for an increase in electricity consumption. The calculation is done as follows: maximum consumption for 2007+6%-10%.
This entails a saving during peak times, as well as a saving regarding the total number of units consumed.
The saving is calculated on a monthly basis.
Saving measures must be implemented immediately (from 7 March). If electricity-saving goals are not attained, power sharing will be resumed from 10 March.

3. The UFS has been controlling its peak demand by means of an energy control system for many years. The geysers of residences and certain central air-conditioning systems were linked to the control system in order to shift energy consumption to non-peak times.

4. In order to attain the goal of 10%, it is necessary to implement further energy control systems and additional measures – which requires time and money. Attention will have to be given, inter alia, to the following:

The 1000+ portable air-conditioning units on the campus (huge power guzzlers) must be connected to energy control appliances and systems.
All the filament bulbs must be replaced.

7. The UFS will be conducting high-level talks with Centlec later this week with a view to:

conveying the unique needs of the UFS in detail;
stating the impact of building and refurbishing projects that are currently in the implementation and planning phases;
requesting understanding for the fact that the UFS does not have the capacity to immediately deliver the 10% saving.

It is evident from discussions thus far that Centlec is sympathetic and wants to help, but also that immediate action and co-operation are expected from the UFS. During the meeting, the UFS must also report back on steps already taken (since 7 March) in this regard.

8. The installation of the emergency power units for the large lecture-hall complexes and a few other critical areas, which has already been approved, is continuing. About R3m is being spent on this. Additional emergency power needs reported to Physical Resources via line managers are currently being investigated with a view to obtaining a cost estimate and subsequently determining priorities in consultation with line managers.

It is recommended that:

a) All line managers, staff members and students be requested to give their full co-operation with regard to saving electricity in every possible way, and that current operational arrangements be amended if possible with a view to promoting power saving.

Staff, students and other users of campus facilities be requested to see to it that lights and air conditioning (individual units) in unused areas are switched off.

b) The following measures drawn up in co-operation with electrical engineers come into effect immediately:

Arrangements to be made by Physical Resources staff:
(Additional capacity to be able to complete everything within a reasonable period of time will have to be found and funded. This aspect will be taken up with the line managers concerned):

The geysers of all office buildings will be switched off at the distribution board. Staff are requested to use a kettle for washing dishes, and are warned not to switch appliances on again themselves.
In all office buildings where 12V and 15W downlighters and uplighters remain switched on for decorative purposes and do not serve as primary illumination, the light switches will be disconnected.
Lighting in cloakrooms will be checked, and illumination levels will be reduced if possible.
All light armatures must be replaced by CFL types.
All lights on the grounds will be checked to ensure minimum power consumption.
The upper limit of all central cooling systems currently regulated via the energy control system must be set to 24 degrees.

Arrangements to be made by Kovsie Sport:

Sport activities requiring sports field illumination must be scheduled after 20:00 in the evening (the lights may not be on between 18:00 and 20:00.)
Sports field illumination must be managed so that such lights are not switched on unnecessarily.

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