Your browser does not support JavaScript! Understanding the Havenga Clause in South African Law - Divorce, Family and Commercial Law Attorneys

Understanding the Havenga Clause in South African Law

HOME / Understanding the Havenga Clause in South African Law

Understanding the Havenga Clause in South African Law

Understanding the Havenga Clause in South African Law

In the South African family law, the Havenga Clause stands as a pivotal legal concept, influencing the landscape of maintenance orders and their variations.

Its significance lies in its ability to shape the course of agreements made during divorces, particularly in determining the financial responsibilities between former spouses.

In this article we will be exploring the subtle differences provided by the clause which are valuable insights into the realm of maintenance law and its impact on individuals navigating the complexities of post-divorce financial arrangements. 

The Havenga Clause: An Overview

At the heart of this legal complexity is the Havenga v Havenga case of 1988, a landmark decision that laid the groundwork for principles governing maintenance orders in South Africa.

The case arose from the aftermath of a divorce, where the consent paper between the parties outlined maintenance terms, including an annual escalation of 12%. Over the years, this case has become a touchstone for understanding the dynamics of maintenance agreements and the challenges surrounding their variation. 

The essence of the Havenga Clause revolves around the variation or rescission of maintenance orders. While, in general, substantial changes in circumstances are deemed necessary for such alterations, the Havenga case introduced a different perspective. It emphasized that changed circumstances are not an absolute prerequisite, opening the door for modifications even when conditions remain static.

The clause, embedded in the consent papers like those in Havenga v Havenga, creates a delicate balance, allowing for variations while preserving the sanctity of agreements reached during divorce proceedings

Legal Principles and Court Approaches

The legal principles originating from the Havenga case explain the courts’ approach to maintenance variations. It recognizes that maintenance agreements, often comprehensive in nature, should be subject to variation only under exceptional circumstances. The Havenga Clause, while upholding the principle of pacta sunt servanda (agreements must be kept), acknowledges that variations may be warranted in the face of sufficient reason, ensuring a fair and just outcome. 

The Havenga Clause In Action

Understanding the relevance of this clause is crucial for both legal practitioners and parties involved in a maintenance dispute, as it outlines the boundaries within which variations can be sought and granted. The Havenga clause has influenced matters such as: 

  • Botha v Botha: the husband and wife agreed in their consent paper during divorce proceedings that the husband would pay the wife a specified amount per month for maintenance. Subsequently, the husband applied for a reduction in the maintenance amount, arguing that they had initially intended for him to pay rehabilitative maintenance for a limited period. The court, drawing on the principle of pacta sunt servanda (agreements must be kept), emphasized that the consent paper represented a solemn agreement between the parties in anticipation of their divorce. The court stated that the implicit indefinite duration of the maintenance obligation persisted, notwithstanding any reduction in the amount. Botha v Botha reinforced the idea that parties entering such agreements should be aware of the potential for variations based on changing circumstances but also highlighted the enduring nature of the commitments made during divorce.

  • In Reid v Reid, the husband agreed, through the consent paper, to pay a monthly maintenance amount to his wife following their divorce. Approximately two years later, the husband sought a reduction in the maintenance amount, asserting that he had agreed to an unjust settlement, and his financial situation had substantially deteriorated. The maintenance court granted a reduction, and the appeal court affirmed this decision, acknowledging a change in the husband’s financial circumstances as a basis for the variation.

  •  In Georghiades v Janse van Rensburg, the ex-wife sought an extension of the maintenance period from three years to an indefinite duration, citing alleged ill-health. The consent paper between the parties stipulated that its provisions constituted a full and final settlement of all present and future financial claims. The court held that the principle of pacta sunt servanda (agreements must be kept) applied, emphasizing the parties’ agreement to a comprehensive deal. This decision reinforced the significance of parties adhering to the terms of their agreements, particularly when they had agreed to a complete settlement of financial claims.

The above cases evidently show how the Havenga clause serves as a guiding principle, ensuring a delicate balance between upholding agreements and recognising the evolving dynamics within which maintenance disputes unfold. 

Seeking Maintenance Order Changes 

For individuals looking to modify maintenance orders, understanding the available options is crucial. Rule 58, which are applications brought in the Magistrate Court and Rule 43 applications which are made in the High Court, provide avenues for spouses to claim maintenance.

Additionally, section 6(1)(b) of the Maintenance Act of 1998, allows for launching applications for substitution or discharge of existing maintenance orders. 

The “Good Cause/”Sufficient Reason” Concept

When approaching the court for maintenance order changes, applicants must assert “good cause” or “sufficient reason” for substitution. Section 6(1)(b) of the Maintenance Act emphasises case’s particular circumstances must be considered, as a precise definition of “good cause” is neither possible nor desirable. The section stipulates that: 

“Whenever a complainant to the effect-

(b) that good cause exists for the substitution or discharge of a maintenance order, has been made and is lodged with a maintenance officer in the prescribed manner, the maintenance officer shall investigate that complaint in the prescribed manner as provided by the Act.

In the case of Thompson v Thompson, the maintenance court has to display causation in such circumstances and not lightly change an order made in terms of the Rule 43 Application in the absence of altered circumstances. However, it is submitted that a change in circumstances is not the only aspect to be considered by the Honourable Court. In the Havenga v Havenga case, Harms J held that there may be sufficient reason even though circumstances have not changed for a maintenance order to be modified

Onus and the rule of the court

In the maintenance court neither party needs discharge the onus of proof that there has been a change in circumstances, the responsibility for placing evidence before the court is not confined to the parties.

When the court considers it necessary to have the evidence adduced which the parties have not put before it, it is the responsibility of the presiding officer to ensure such evidence is provided to the court. Any false disclosure before the court may result in the court refusing the party relief.

In conclusion, as families navigate the complexities of post-divorce arrangements, the Havenga clause remains a cornerstone in the South African maintenance law.

Armed with an understanding of legal principles and available routes, individuals can approach the courts with clarity, ensuring a delicate balance between upholding agreements and adapting to evolving circumstances.

Read More:

How to calculate Child Maintenance (Use this Court Formula!)

Enforcing South African Maintenance Orders in other Countries

BOOK A CONSULTATION
Book a Consultation






    Send me a copy