This is an appeal case heard before the Supreme Court of Appeal, following a hearing in the Free State Division of the High Court, and being first heard in the Maintenance Court.
The Appeal is largely based on the interpretation of section 2(a) of the Arbitration Act 42 of 1965, hereafter referred to as, the Arbitration Act, and whether or not arrear maintenance falls inside the scope of this section.
The Maintenance Court which first heard the matter held that arrear maintenance did fall inside the purview of section 2a, however this would be overturned by the High Court, which held that the Maintenance Court had no jurisdiction, and the issue at hand had to be decided by an arbitrator.
This decision was also appealed against, and was taken to the Supreme Court of Appeal.
In the specific case at hand, the Appellant and First Respondent were divorced in 2015, with a Settlement Agreement being made an Order of Court. Two clauses of said Settlement Agreement are relevant.
In 2018, disputes arose between the parties, with an arbitrator appointed and an Arbitration Agreement being concluded in 2020.
However, no statement of claim for those disputes as agreed in the Arbitration Agreement was ever filed by the Appellant, and instead the Appellant’s legal representatives wrote to those of the First Respondent.
This letter raised concerns over the arbitration costs, and urged that the disputes be handled between the parties themselves. Consequently, the arbitration proceedings never occurred.
It is noteworthy that at this point the disputes did not include arrear maintenance.
On 1st March 2021, the Appellant made an ex parte Application to the Maintenance Court, attempting to enforce the Maintenance Order in The Settlement Agreement, and claim the arrear maintenance payable in terms of section 26 of the Maintenance Act, 99 of 1998.
This Application was granted; with the Court also interdicting Capitec Bank, the second Respondent, from making any payment from the first Respondent’s accounts.
Upon the return date, the First Respondent objected to the Maintenance Court’s jurisdiction, as clause 11 had meant such dispute must go through arbitration instead.
For whatever reason, the Court ignored said objection, and upheld its order. Following this, the matter would be appealed to the High Court, where the Court held that the matter was to be decided upon by an arbitrator.
The matter was then appealed once more and was before the Supreme Court of Appeal.
The key issue at hand was whether or not a dispute over arrear maintenance could be arbitrated.
Section 2a of the Arbitration Act states that any matter arising from or related to a matrimonial cause, was not allowed to be referred to arbitration.
The court held that while it is known, that agreeing to have a dispute resolved through arbitration is not inherently contrary to boni mores, it is also clear that arbitration may not usurp the jurisdiction of the courts.
Section 3 of the Maintenance Act states that each Maintenance Court holds jurisdiction over all matters arising from the Maintenance Act. A Maintenance Order is defined in the same Act as ‘any order for the payment, including the periodical payment, of sums of money . . . issued by any court in the Republic. . .’
Given that the Settlement Agreement was made an order of court, it qualifies as a Maintenance Order, and has jurisdiction over the matter as a result.
The Appellant further submitted that the arbitration clause in the Settlement Agreement was contrary to section 2a of the Arbitration Act as defined above, and invalid, granting the maintenance court jurisdiction, and supporting its Order.
The First Respondent however, supported the decision of the High Court.
The First Respondent argued that the Settlement Agreement disposed of all the disputes between the parties, and the matrimonial cause between the parties ceased to exist when a Decree of Divorce was granted, with related to said cause remaining; similar to the case of Brookstein v Brookstein.
As such, the matter was not precluded from arbitration by section 2a, and given that the parties had expressly agreed that all issues arising from the Settlement Agreement were to be dealt with by way of arbitration; their Arbitration Agreement should be respected by the court.
The First Respondent argued that the dispute between the parties required a factual determination of whether the dum casta clause, of clause 3.1 was triggered or not.
If the clause had been triggered, the First Respondent contended, then it had to be asked if the Appellant was entitled to the payment of maintenance arising from the Settlement Agreement.
To amplify this argument, the First Respondent further stated that the dispute dated back to 2018, where the Appellant was living with another man as husband and wife and therefore his obligation to pay maintenance was extinguished in terms of clause 3.1.
According to the First Respondent, the dispute was properly formulated and the Appellant elected not to place any evidence of exceptional circumstances before the maintenance court that would entitle it to exercise its discretion not to stay the proceedings and refer the dispute to arbitration.
Insofar as the Arbitration Clause is concerned, the First Respondent argued that the facts of this case are telling, with the Appellant having requested the appointment of an arbitrator, with a subsequent Arbitration Agreement being concluded between the parties.
The Appellant was the party to renege from the Arbitration Agreement by failing to file a statement of claim, where the parties had agreed that the arbitrator should decide upon his own jurisdiction.
These facts, the First Respondent argued, should allow for the arbitration, as it was the fault of the Appellant alone, that the arbitration never occurred, even after initiating said proceedings.
The court therefore found that each party had a separate dispute, with the Appellant claiming arrear maintenance while the First Respondent claimed that the maintenance obligation had ceased in terms of the dum casta clause.
The court held that the First Respondent’s argument had not been well thought through.
Firstly, the First Respondent had complied with much of the Maintenance Order, if not all of it.
The court held that the First Respondent could therefore not argue at the same time, that he was not obliged to pay maintenance.
Secondly, the court held that even though the dispute may have originated in 2018, such did not form part of the disputes which had been marked for arbitration.
The letter mentioning the disputes to be referred to arbitration did not mention maintenance as a dispute, and as a result, were not part of the Arbitration Agreement.
Thus, the Appellant could not renege from said agreement in terms of maintenance.
Having found that the High Court had been mistaken in stating that only an arbitrator had jurisdiction, the court then turned its mind to determining whether arrear maintenance was a matrimonial cause, or related to a matrimonial cause.
Upon analysing the arbitration clause in the Settlement Agreement, the court found that it did not specify the enforcement of maintenance as a dispute that should be referred to arbitration, nor does it state that the Arbitrator choose their own jurisdiction.
The court therefore held that the arbitration clause did not state that in enforcing the Maintenance Order or claiming arrear maintenance, should the matter be submitted to arbitration.
Under the circumstances, and as already indicated above, the interpretation of s 2(a) of the Arbitration Act and other relevant legislation becomes necessary.
The court held that in interpreting legislation, one must look at the ordinary meaning of the words used, with the purpose of the legislation and the appropriate context borne in mind, and finally, said interpretation must be in line with the Constitution.
The court therefore held that section 3 of the Maintenance Act granted to the Magistrates’ Court jurisdiction over all matters arising from the Maintenance Act. The purpose of said Act is inter alia, to provide for the resolution of maintenance complaints including recovery of arrear maintenance, or enforcement of its Orders.
In addition to this, the Maintenance Act criminalises failure to pay any particular amount of maintenance in accordance with a Maintenance Order in terms of section 31(1).
The Maintenance Act therefore, created Maintenance Courts, to deal with complaints where any person legally liable to maintain any other fails to do so, and the enforcement of the said orders.
As a result, the Court held that it could not interpret s 2(a) of the Arbitration Act in a way that contradicted the purpose of the Maintenance Act.
The court further held that maintenance orders could be altered, suspended or revoked, using section 8(1) of the Divorce Act 70 of 1979 or section 19 of the Maintenance Act. The court held that no arbitrator could hold these powers imposed by the two Acts, and only the Courts could hold said powers.
The court therefore stated that if one entertained the possibility for a moment that the First Respondent’s argument that he was not obliged to pay maintenance in terms of the dum casta clause, he should have approached the Maintenance Court for an Application to alter, suspend or rescind the Maintenance Order. The arbitrator could not discharge or vary such Order.
The court then looked at the precedent of Ressell v Ressell, where the court refused to enforce a Settlement Agreement that was made an Order of Court. Said Settlement Agreement also stipulated that any disputes (post-divorce) between the parties had to be referred to arbitration.
The court held that the provision in s 2(a) of the Arbitration Act excluding ‘any matter incidental to such matrimonial cause’ is adequately wide enough to keep such matters out of the field of arbitration, even if the dispute arose before or after the divorce.
The court held that the matter was linked to matrimonial cause, and therefore, was not subject to arbitration. This is supported by the common law, which does not allow for the jurisdiction of the courts to be usurped by some other forum.
As a result of the above, the court upheld the appeal, with costs including the costs of counsel.
This case clearly shows that parties may not opt for another private forum, where legislation deems the courts to be the appropriate forum for hearing the matter.
This protects parties in maintenance disputes, especially given that those in maintenance disputes may not be financially capable of another process, such as arbitration.
It is also relevant in that this judgement once again shows the exclusive authority of the courts, to adapt, suspend or rescind a Maintenance Order.
Thus, should you find yourself in such a dispute, remember, the courts are always available, and nothing can alter or end the Maintenance Order, except the courts.
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