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[2022] ZAFSHC 324
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W.J.V.J v E.V.J and Another (A58/2022) [2022] ZAFSHC 324 (17 November 2022)
SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO:
A58/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between
:
W[....]
J[....] V[....] J[....]
Appellant
and
E[....]
V[....] J[....]
First
Respondent
CAPITEC
BANK
Second
Respondent
CORAM:
LOUBSER,
J et MPAMA, AJ
JUDGMENT
BY:
MPAMA,
AJ
DATE
HEARD:
10
OCTOBER 2022
DELIVERED
ON:
17
NOVEMBER 2022
[1]
This is an appeal against the judgment and order of the Magistrate,
Bloemfontein (hereinafter
referred as the maintenance court)
delivered on 18 February 2022 in terms of which the appellant’s
plea relating to arbitration
was dismissed.
[2]
The appellant and the first respondent (respondent) were married to
each other and
their marriage was dissolved by decree of divorce
incorporating a settlement agreement issued by this court on 04 June
2015.
[3]
For the purposes of this appeal the following clauses in the
settlement agreement
between the appellant and the respondent are
worth mentioning. The appellant undertook or agreed to the
following:
“
(i)
To pay maintenance to the first respondent until respondent’s
death, remarriage or cohabitation.
(ii)
That should any dispute arise between the appellant and respondent
regarding their obligations under
the settlement agreement, such
dispute will be resolved by way of arbitration.”
[4]
It is common cause that the
appellant failed to pay maintenance as agreed in the settlement
agreement. In 2018 the respondent initiated arbitration proceedings
for the recovery of the arrear maintenance. An arbitrator
was
appointed. A pre-arbitration meeting was held and it was attended by
the appellant and respondent.
[5]
Whilst the arbitration
proceedings were still underway, the respondent approached
the maintenance court in order to claim payment for arrear
maintenance by the appellant on 01 March 2021. At the time the
appellant
was allegedly in arrears in the amount of R 448 163.20.
The respondent had notified neither the arbitrator nor the appellant
about this development.
[6]
The respondent, still thirsty
for the recovery of arrear maintenance sought to obtain an
order in
the maintenance court for the issue of a warrant of execution
alternatively emoluments attachment or an order for debt
attachment
in terms of
sections 27
,
28
and
30
of the
Maintenance Act 99 of 1998
.
[7]
The appellant opposed the application serving before the maintenance
court and raised
an objection to the jurisdiction of the maintenance
court to hear the matter on the ground that in terms of the
settlement agreement,
the parties must refer their disputes arising
from the settlement agreement to arbitration. This objection was
dismissed by the
maintenance court. Aggrieved by this decision the
appellant now approaches this court on appeal.
[8]
The appellant in his grounds of appeal attacks the judgment of the
maintenance court,
essentially on the following grounds:
That
the court a
quo
erred in:
8.1
Dismissing the appellant’s special plea or point
of law.
8.2
Finding that the dispute between the appellant and
respondent fell within the purview of a “matrimonial cause
or a
dispute incidental thereto” as contemplated in
section 2
of the
Arbitration Act 42 of 1965
.
8.3
In failing to apply the legal principle
kompetenz-
kompetenz to
the adjudication of the special plea or point of law
raised by the appellant.
[9]
It is the appellant’s case
that the maintenance court should have upheld his point
of law and
dismissed the first respondent’s application in that regard.
[10]
The respondent opposes the appeal on the grounds
that the court was correct to dismiss the point of law
raised.
In her heads of argument, the respondent argued that the court must
decide:
10.1
Whether the parties competently agreed that the dispute concerning
the enforcement of the maintenance order must be submitted
to
arbitration.
10.2
Whether the maintenance court has been validly ousted by the parties.
[11]
The appeal is brought before us in terms of
section 25
(1) of the
Maintenance Act which
provides:
“
Any
person aggrieved by any order made by the maintenance court under the
Act may, within such a period and in such a manner as
may be
prescribed, appeal against such order to the High Court having
jurisdiction.”
[12]
Most issues are common cause between the parties.
First, it is not in dispute that there is a maintenance
order against
the appellant, in favour of the respondent. Second, it is common
cause that the appellant failed to pay maintenance
and is now in
arrears. It is also not in dispute that the parties had agreed to
resolve any issues arising out of their settlement
agreement through
arbitration.
[13]
The issue to be decided is whether the maintenance
court misdirected itself when it took a decision that
the dispute
between the parties falls within the purview of
section 2
of the
Arbitration Act 42 of 1965
. The court must decide if the maintenance
court was correct in dismissing appellant’s point of law in
this respect.
[14]
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by application
of law decided in a fair public hearing before a
court, or where
appropriate, another independent tribunal or forum”.
[15]
Therefore there are various methods to resolve a
dispute other than litigation and such methods are entrenched
in our
Constitution. These methods include arbitration, mediation, amicable
settlement and adjudication.
[16]
In South Africa domestic arbitration is governed
by the
Arbitration Act (the
Act) and the Act’s preamble reads:
“
To
provide for the settlement of disputes by arbitration tribunals in
terms of written arbitration agreements and for the enforcement
of
the awards of such arbitration tribunals”.
[17]
Section 2
of the Act provides:
“
A
reference to arbitration shall not be permissible in respect of –
(a)
a matrimonial cause or any matter
incidental to any such cause;”
[18]
Section 7
of the Act provides:
“
If
any party to an arbitration agreement commences any legal proceedings
in any court against any other party to the agreement in
respect of
any matter agreed to be referred to arbitration, any party to such
legal proceedings may at any time after entering
appearance to defend
but before delivering any pleadings, or taking any other steps in the
proceedings, apply to that court for
a stay of proceedings.”
[19]
The appellant contended first that when the parties got divorced on 4
June 2015, a “matrimonial
cause” between the parties
ceased to exist and the matrimonial cause is now
res judicata.
It
was argued that on this basis the maintenance court erred in finding
that this is a matter excluded from arbitration by
section 2
of the
Act.
[20]
The court was referred by the appellant to the
case of
BROOKSTEIN v BROOKSTEIN 2016(5) SA 211 (SCA)
where
it was held:
“
After
the order was granted, there was no longer any matrimonial cause to
speak of. Neither was there anything incidental to such
cause, as all
matrimonial issues were disposed of when the court granted the order
incorporating the settlement agreement. Consequently,
there cannot be
any issue still outstanding relating to the marriage. The inevitable
result is that the marriage and all its natural
consequences came to
an end, and anything relating thereto, such as proprietary
consequences, became res judicata”. It is
the appellant’s
view that the arbitrator, not the court must decide the issue of
dispute between the parties.
[21]
Second, the appellant argued that the parties enjoy autonomy to agree
which categories of disputes
arising between them will be submitted
to arbitration for resolution, rather than that being determined by
court. The court
was referred to the case of
CANTON
TRADING 17 (PTY) Ltd t/a CUBE ARCHITECTS v FANTI BEKKER HATTINGH NO
(479/2020)
[2021] ZASCA 163
at para 28 where it was said:
“……
The
parties enjoy autonomy to agree that categories of dispute arising
between them will be submitted to arbitration for resolution,
rather
than be determined by the courts. Precisely which disputes are to be
submitted to arbitration is a question of what has
been agreed, and
the interpretation of the parties ‘written agreement. Generally
the parties intend that all their disputes
will be decided under a
unitary jurisdiction, either by the courts or by way of arbitration,
and not under a bifurcated jurisdiction,
where some disputes are
determined by the courts and others by submission to arbitration.”
[22]
The respondent contended that the wording of
section 2
(a) of the
Arbitration Act is
wide enough to keep a dispute
about the enforcement of a maintenance order out of the realm of
arbitration. It was further argued
that if the effect of the
arbitration clause is to force the parties to refer the present
dispute to arbitration, it was made an
order of court
per
incuriam.
[23]
The appellant contended that the maintenance court has failed to
apply the principle kompetenz-
kompetenz. This is a German law
concept, which is well established in international arbitrations
referring to a tribunal’s
ability to rule on issues of its own
jurisdiction.
[24]
Following this approach of kompetenz- kompetenz, a
court may be inclined to allow an arbitrator to decide
questions of
jurisdiction without necessarily vacating its power to ultimately
determine the question of arbitrator’s jurisdiction.
[25]
The SCA recognised this principle of kompetenz-
kompetenz in the case of
CANTON TRADING 17 (PTY) Ltd
supra and referring to its previous judgments including the case
of
NORTH EAST FINANCE (PTY) LTD v STANDARD BANK OF SOUTH AFRICA
LTD
2013 (5) SA 1
on para 35 held:
“
The
other approach is based on the principle of competence- competence
also known as ‘Kompetenz- Kompetenz’ (referring
to its
German origins), or the principle of ‘competence de la
competence ‘. This principle has a positive and a negative
aspect. The positive aspect is largely uncontroversial. Arbitrators
enjoy the competence to rule on their own jurisdiction and
are not
required to stay their proceedings to seek judicial guidance. The
negative aspect of the principle may be formulated as
follows. Where
the dispute has already been referred to an arbitrator, the court
will not rule upon the validity, existence or
scope of the
arbitration agreement, but will leave these questions of jurisdiction
for the arbitrator to decide, at least initially.
But, even if the
dispute has not yet been referred to arbitration, the court may be
disinclined to decide the question of jurisdiction,
unless the
arbitration agreement is manifestly void…”
[26]
It follows that parties are free to decide between themselves as to
which disputes are to be
arbitrated and which disputes are to be sent
to court. In instances where the parties have elected to
refer their disputes
to an arbitrator, the principle of
competence-competence requires that the arbitrator must decide or
rule on the issues of its
own jurisdiction should there be an
objection.
[27]
In the maintenance court, when the respondent referred the matter to
the maintenance court, the
appellant objected to the court’s
jurisdiction. The question of whether the arrear maintenance is a
matter falling within
the purview of
section 2
of the Act or not
cannot be decided by the maintenance court but by an arbitrator since
the parties had agreed to refer their disputes
to an arbitrator. The
arbitrator must decide its own issues of jurisdiction.
[28]
It is so that our courts have a responsibility to
ensure that maintenance orders are observed and they guard
over
maintenance matters, especially those involving minors, jealously.
Nevertheless, the decision of the maintenance court to
pronounce on
the forum upon which the dispute between the parties may be heard
amounted to misdirection as the parties had agreed
to refer their
disputes to arbitration.
[29]
In the circumstances, I accordingly make the
following order:
1.
The appeal is upheld with costs
2.
The maintenance court’s decision is set aside and replaced with
an order
in terms whereof the appellant’s point of law relating
to arbitration is upheld.
L.MPAMA,
AJ
I
agree and it is so ordered
P.J.
LOUBSER, J
On
behalf of Appellant:
Adv.R
Van der Merwe
Instructed
by:
Messrs
Hendre Conradie Inc.
Bloemfontein
On
behalf of Respondent: Adv.
J Van der Merwe
Instructed
by:
Messrs
Symington De Kok
Bloemfontein