The Arbitration Act precludes a dispute about arrear maintenance being decided by an arbitrator, the Supreme Court of Appeal (SCA) ruled this month.
Section 2 of the Arbitration Act prohibits the submission to arbitration of certain matters or subjects. In terms of paragraph (a), “reference to arbitration shall not be permissible in respect of any matrimonial cause or any matter incidental to any such cause”.
The SCA was called upon to decide whether arrear maintenance is a matrimonial cause or incidental thereto.
The case involved a divorce order following the dissolution, in 2015, of the marriage between the appellant, “EVJ”, and “WVJ”, the first respondent.
The decree of divorce incorporated a deed of settlement, which, inter alia, entitled EVJ to spousal maintenance. The entitlement to spousal maintenance would cease if EVJ remarried or cohabited with another man, or upon her death (the dum casta clause).
The settlement also included an arbitration clause in terms of which any dispute between the parties regarding their rights, duties, or liabilities arising from the deed of settlement was to be submitted to arbitration.
In 2018, several disputes arose between the parties arising from the deed of settlement. An arbitrator was appointed, and an arbitration agreement was concluded in August 2020. EVJ, however, did not file a claim in respect of those disputes as agreed in the arbitration agreement.
In March 2021, EVJ approached the Maintenance Court with an application to enforce the maintenance order and to recover arrear maintenance. The court granted the order on an ex parte basis.
WVJ anticipated the order and objected to the jurisdiction of the Maintenance Court. He contended that the parties contractually excluded its jurisdiction from hearing the maintenance dispute in terms of the arbitration clause.
The Maintenance Court dismissed the objection. WVJ appealed the decision to the High Court, which found in his favour, holding that the dispute should be decided by the arbitrator.
EVJ appealed the decision to the SCA. She contended that the arbitration clause conflicted with section 2(a) of the Arbitration Act because the arrear maintenance dispute constituted a matrimonial cause, or a matter incidental thereto.
Nature of the dispute
Before the SCA, WVJ argued, inter alia, that the dispute concerned a factual determination of whether the dum casta clause had been triggered. If the answer was yes, the question arose whether EVJ was entitled to the payment of maintenance in terms of the deed of settlement. As such, section 2(a) of the Arbitration Act was not applicable. Further to this submission, WVJ contended that the dispute dated to 2018 and related to the fact that EVJ was living with another man as husband and wife, and therefore his obligation to pay maintenance was extinguished.
Regarding the arbitration clause, WVJ argued that his former wife requested that an arbitrator be appointed; an arbitration agreement was concluded; and EVJ reneged on the agreement by failing to file a statement of claim in circumstances where the parties had agreed that the arbitrator should decide his own jurisdiction.
The SCA said WVJ had mischaracterised the nature of the dispute. The dispute concerned the enforcement of the maintenance order by the High Court when the marriage was dissolved, not the underlying settlement agreement.
WVJ complied with the maintenance court order, although not in full. Therefore, his assertion that he was not obliged to pay any maintenance could not also be true.
Second, the SCA said, arrear maintenance was not among the disputes put before the arbitrator. The arbitration agreement was therefore irrelevant for the purposes of the issue before the appeal court.
Interpretation of statutes
The SCA held that section 2(a) of the Arbitration Act is wide enough to keep arrear maintenance out of arbitration. In coming to this conclusion, the SCA considered the ordinary grammatical meaning of the word “incidental” – it denotes “something happening in connection with or as a natural result of something else”.
Judge Anna Kgoele, who wrote the judgment, said the provisions of the Maintenance Act and the Divorce Act were also relevant to the matter.
The Maintenance Act provides for the easy, cost-effective, and speedy resolution of maintenance complaints, including the recovery of arrear maintenance. The Act “jealousy created” specialised courts to deal with maintenance complaints and the enforcement of maintenance orders. The SCA therefore could not interpret section 2(a) of the Arbitration Act in a manner that would be at odds with the purpose of the Maintenance Act.
In terms of section 8(1) of the Divorce Act, a maintenance order can be varied, rescinded, or suspended. This section is equivalent to section 19 of the Maintenance Act.
An arbitrator cannot be clothed with the powers imposed by these two Acts. The powers are bestowed upon the courts only, Judge Kgoele said.
She also said the common law prohibits the ousting of the jurisdiction of or access to the courts. Therefore, in the worst-case scenario, EVJ could not have been deprived of the choice of forums in which to pursue the civil enforcement of the maintenance order, nor could she lawfully have waived her right to approach the Maintenance Court.
The SCA upheld EVJ’s appeal, with costs, and set aside the High Court’s decision.
