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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 358/2023

In the matter between:

E[...] V[...] J[...] APPELLANT

and

W[…] J[…] V[…] J[…] FIRST RESPONDENT
CAPITEC BANK HOLDINGS LTD SECOND RESPONDENT

Neutral citation: V[...] J[...] v V[...] J[...] and Another (258/2023) [2024] ZASCA
92 (11 June 2024)
Coram: MOCUMIE, MOKGOHLOA, WEINER and KGOELE JJA, and
TOLMAY AJA
Heard: 6 May 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives via e -mail, publication on the Supreme Court of

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Appeal website and released to SAFLII. The date and time for delivery are deemed
to be at 11h00 on 11 June 2024.
Summary: Divorce – arbitration agreement in the Deed of Settlem ent made an
order of court – interpretation of s 2(a) of the Arbitration Act 42 of 1965 – whether
arrear maintenance is arbitrable – s 2(a) wide enough to preclude such a matter.

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ORDER


On appeal from: Free State Division of the High Court, Bloemfontein (Mpama
AJ, Loubser J sitting as a court of appeal):
1 The appeal is upheld with costs, including costs of two counsel where s o
employed.
2 The order of the high court is set aside and replaced with the following order:
‘The appeal is dismissed with costs’


JUDGMENT


Kgoele JA ( Mocumie, Mok gohloa and Weiner JJA and Tolmay AJA
concurring)
[1] The appeal concerns the interpretation of s 2(a) of the Arbitration Act 42 of
1965 (the Arbitration Act). C entral to the appeal is a dispute as to whether arrear
maintenance falls within the purview of s 2(a). The magistrate court for the district
of the Free State held at Bloemfontein (the maintenance court), ruled that the issue
falls within the purview o f s 2( a). This ruling was set aside on appeal to the Free
State Division of the High Court, Bloemfontein (the high court). It held that the
maintenance court had no jurisdiction to decide the issue, only an arbitrator c ould

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do so. This appeal is against the decision of the high court with special leave of this
Court.

[2] The dispute arose in the following circumstances. The appellant, Mrs E[…]
V[…] J[…] and the first respondent, Mr W[…] J[…] V[…] J[…], were married.
Their marriage was dissolved on 4 June 2015. The decree of d ivorce granted
incorporated a deed of settlement concluded by the parties. Two clauses thereof are
relevant for the purposes of th is appeal. The first one is clause 3.1 which provides
the appellant with the entitlement to the payment o f spousal maintenance. In terms
of this clause, the spousal maintenance would cease if she remarries, cohabits with
another man, or upon her death (the dum casta clause). The second is clause 11
which provides that any dispute between the parties regarding their rights, duties ,
or liabilities arising from the deed of s ettlement, was to be submitted to arbitration
(the arbitration clause).

[3] Around 2018, s everal disputes arose between the partie s arising from the
deed of s ettlement. An a rbitrator was eventually appointed to resolve th ose
disputes. Meetings between the parties culminated in an arbitration agreement
concluded in August 2020. At all times the parties were assisted by their respective
legal representatives. Clause 3 of the arbitration agreement accorded the arbitrator
the power to determine his or her own jurisdiction.

[4] The appellant, however, never filed a statement of claim in respect of tho se
disputes as agreed in the arbitration agreement. Instead, on 20 August 2020, the
appellant’s attorney wrote a letter to the respondent’s attorney, raising concerns
about the costs of arbitration. He also urged the respondent’s attorney that the y,
together with the parties , should try and resolve the disputes outlined in the letter

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that was previously sent to them dated 9 September 2019. As a result, the
arbitration p roceedings did not materialis e. I pause here to indicate that , the
appellant’s counsel submitted before this Court that at that stage , arrear
maintenance was not included in these disputes . I will return to this contention
later in the judgment.

[5] On 1 March 2021, the appellant approached the maintenance c ourt with an
application to enforce the maintenance order and to recover the arrear maintenance
in terms of s 26 of the Maintenance Act, 99 of 1 998 (the Maintenance Act). The
maintenance court granted the requested order on an ex-parte basis. In addition, the
maintenance court interdicted Capitec Ba nk Holdings Ltd, the second respondent ,
from effecting payment of any monies from the account of the first respondent.

[6] Aggrieved by this , the first respondent anticipated the return date. In his
opposition, the first respondent also objected to the jurisdiction of the maintenance
court. He contended that the pa rties contractually excluded its jurisdiction from
hearing the maintenance dispute in terms of the arbitration clause.

[7] The maintenance c ourt dismissed the objection. It ordered the maintenance
enquiry to continue in that court. The respondent appealed the maintenance court’s
order, and as alluded to already , the high c ourt upheld his appeal. The high court
concluded that the question of whether the arrear maintenance is a matter falling
within the purview of s 2 of the Arbitration Act or not c annot be decided by the
maintenance court, but by the a rbitrator, since the parties had agreed to refer their
dispute to arbitration. The high court also concluded that the arbitrator must decide
his own jurisdiction.

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[8] The central question in this appeal is whether a dispute regarding arrear
maintenance is arbitrable. Key to this dispute is s 2(a) of the Arbitration Act which
prohibits the submission to arbitration of certain matters or subjects. It provides:
‘A reference to arbitration shall not be permissible in respect of –
(a) any matrimonial cause or any matter incidental to any such cause.
(b) . . .’

[9] It is trite that a n agreement to have a dispute resolved by way of arbitration
is not in itself inherently contra bonos mores.1 In Telecordia Technologies Inc v
Telkom SA Ltd2 this Court stressed the need, when c ourts have to consider the
confirmation or setting aside of arbitral awards, for the adherence to the principle
of party autonomy, which requires a high degree of deference to arbitral decision
and minimises the scope of intervention by the courts.

[10] In the same breath, i t is well established that arbitration does not oust the
jurisdiction of courts .3 Section 3 of the Mainte nance Act also stipulates that each
magistrates’ court functions as a maintenance c ourt at the district level, possessing
jurisdiction over all matters arising from the Maintenance Act. A maintenance
order is defined in the Maintenance Act as ‘any order for the payment, including
the periodical payment, of sums of money . . . issued by any court in the Republic .
. .’ A ‘court’ in the Republic includes a high court.

[11] The appellant’s main submission is that the impugned arbitration clause is in
conflict with s 2( a) of the Arbitration Act because the arrear maintenance dispute

1 Lufuno Mphaphili and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) para 219-223.
2 Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA); (2007 (5) BCLR 503;
[2007] 2 All SA 243 para 48.
3 Crompton Street Motors CC t/a Wallers Garage Service Station v Bright Ideas Projects 66 (Pty) Ltd t/a All Fuels

[2021] ZACC 24; 2021 (11) BCLR 1203 (CC); 2022 (1) SA 317 (CC) para 26.

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constitutes a matrimonial cause, or a matter incidental thereto. The appellant
therefore supports the order of the m aintenance court that the dispute was not
capable of being adjudicated upon by way of arbitration.

[12] Relying on Eke v Parsons (Eke),4 and Brookstein v Brookstein (Brookstein),
5 the first respondent supports the order of the appeal court. He contends that the
deed of settlement disposed of all the disputes betw een the parties; the lis between
the parties became res judicata; the matrimonial cause between the parties ceased
to exist when a decree of divorce was granted; nothing remained that was
incidental to such cause . As far as the characteri sation of the dispute between the
parties is concerned, the first respondent submitted that the appellant’s cause of
action is based on the dum casta clause; and the pa rties 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.

[13] As a basis for the argument that the dispute does not fall within the purview
of s 2( a) of the Arbitration Act, the first respondent relied on Brookstein wherein
this Court dealt with the question of whether a delictual claim based on negligent
misrepresentation of the appellant’s accrual was a cause that formed part of t he
matrimonial cause and thereby not susceptible to arbitration in terms of the
Arbitration Act. In this regard, the Court held as follows:
‘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 of the 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

4 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC).

4 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC).
5 Brookstein v Brookstein [2016] ZASCA 40; 2016 (5) SA 210 (SCA).

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and all its natural consequences came to an end, and anything relating thereto, such as
proprietary consequences, became res judicata.’6

[14] In characterising the dispute between the parties, the first respondent argued
that the dispute between the parties concerns in particular, a factual determination
of whether the dum casta clause was triggered or not. If the answer is yes, the first
respondent submitted, a question of whether the app ellant is entitled to the
payment of maintenance in terms of the deed of settlement arises. As such, s 2(a)
of the Arbitration Act is not applicable and the dispute between the parties is
arbitrable. To amplify this submission, the first respondent contends that the
dispute dates back to 2018. It relates to the fact that the appellant was living with
another man as husband and wife and therefore his obligation to pay maintenance
was extinguished. According to the first respondent, t he 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.

[15] As far as the arbitration clause is concerned, the first respondent argued that
the facts of this case are telling in that the appellant is the one who requested that
an a rbitrator be appointed; an arbitration agreement was concluded between the
parties; the appellant is the one who reneged from this agreement by failing to file
a statement of claim in circumstances whe re the parties had agreed that the
arbitrator should decide upon his own jurisdiction. The first respondent contends
that the order of the high court cannot be faulted.


6 Ibid fn 5 above para 12.

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[16] The characterisation of the principal issue before this Court is a fundamental
point of departure of the dispute between the parties. This is evident because whilst
the appellant refers to it as arrear maintenance, the first respondent , on the other
hand, relates the dispute to the dum casta clause, a duty to maintain . According to
him, this would include a question of whether the maintenance order has lapsed or
been extinguished.

[17] The characterisation proffered by the first respondent is ill-conceived for
two reasons. First, the maintenance dispute stems from a maintenance order that
was made by the high court when the marriage between the parties was dissolved.
It relates to enforcing an order of the court and not the underlying settlement
agreement. The appellant sought an order for the attachment of a debt. The
majority of the claim s consist of the short payment s that were made by the first
respondent. For example, in July 2017, it reflect ed a short payment of R1 627.50.
This is so because an amount of R32 550 instead of R34 177.50 was paid. The list
goes on up until the year 2020. Some short payment relates to relatively small
amounts of ± R400 . Only three of the 42 months’ transactions relied on by the
appellants relate to a total non-payment.

[18] The upshot of all of the above is that the first respondent did comply with
the maintenance court order but not in full. The statement proffered by the first
respondent that he denies that he is obliged to pay any maintenance to the
applicant, cannot be true as well. He did make payments but not in accordance
with the amount the maintenance order stipulated.

[19] Second, even though the first respondent’s contention that the maintenance
dispute dates back to 2018 may be correct, however, it is clear that it did not form

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part of the disputes for which an arbitrator was sought and appointed. The letter
requesting an appointment of an arbitrator dated 9 September 2019 which was
attached to the papers th at served before the maintenance court, enumerated the
disputes between the parties . And maintenance was not among them. Therefore,
the arbitration agreement the first respondent bemoan s does not include arrear
maintenance. The arbitration agreement is therefore irrelevant for the purposes of
the issue before this Court. The submission that the appellant reneged from the
arbitration agreement cannot be correct.

[20] It appears that the high court was not spared by how the first respondent
misconstrued and conflated the issue that was before the maintenance court, hence
its finding that the arbitrator must decide his jurisdictional issues. For that reason,
the high c ourt misdirected itself in this regard. This brings me to the main issue
before this Court , whether arrear maintenance is a matrimonial cause or an
incidental cause thereto.

[21] The high court did not make a finding that arrear maintenance is a matter
falling within the purview of s 2(a) or not. It deferred the decision to the arbitrator.
Whether it did so because of the arbitration clause or because parties signed an
arbitration agreement does not come out clearly from the judgment. Either way, the
decision of the high court cannot be supported.

[22] A proper analysis of the arbitration clause itself reveals that it was couched
in a general manner. It did not specify the enforcement of maintenance as a dispute
that should be referred to arbitration. What compounds the issue further is that
nowhere in the arbitration clause or the deed of s ettlement did the parties refer to
the fact that ‘the arbitrator should decide its own issues of jurisdic tion’. As

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indicated above, this phrase is only found in the arbitration agreement . I have
already pronounced that the arbitration agreement is irrelevant to the issue in this
appeal. It is therefore apparent that this phrase cannot be imported to assist in the
interpretation of the arbitration clause. In my view, it cannot be said that the
arbitration clause gave express intention of the parties that enforceability of the
maintenance order or arrear maintenance should be submitted to arbitration. Under
the circumstances, and as already indicated above, the interpretation of s 2 (a) of
the Arbitration Act becomes necessary.

[23] Recently the Constitutional Court in Amabhungane Centre for Investi gative
Journalism NPC v President of the Republic of South Africa 7 restated the trite
approach to the interpretation of statutory provisions and held:
‘. . . one must start with the word, affording them their ordinary meaning, bearing in mind that
statutory provisions should always be interpreted purposively, be properly contextuali sed and
must be construed consistently with the Constitution. This is a unitary exercise. The context
maybe determined by considering other subsections, sections or the chapter in which the
keyword, provision or expression to be interpreted is located. Context may also be determined
from the statutory instrument as a whole. A sensible interpretation should be preferred to one that
is absurd or leads to an unbusinesslike outcome.’

[24] Following the above unitary approach, the point of departure is the language
used in the section, in ‘light of the ordinary rules of grammar and syntax .’8 To this
end, the phrase ‘incidental to’ in its ordinary grammatical meaning, and when used

7 AmaBhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa [2022] ZACC
31; 2023 (2) SA 1 (CC); 2023 (5) BCLR 499 (CC) para 36.
8 Natal Joint Municipality Pension Fund v Endumeni Municipality [2012] 2 All SA 262, 2012 (4) SA 593 (SCA)

and Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2014] 1 All SA 517, 2014 (2)
SA 494 [2013 ZASCA 176.

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as an adjective, denotes ‘something happening in connection with or as a natural
result of something else.’9

[25] The language of s 3 of the Maintenance Act is also important as it gives the
magistrates’ court jurisdiction over all matter s arising from the Maintenance A ct.
The purpose of the Maintenance Act should also be taken into consideration.
Amongst others, its purpose is to provide for the easy, cost-effective, and speedy
resolution of maintenance complaints including recovery of arrear maintenance, or
enforcement of its orders. In addition, the Maintenance Act criminalises failure to
pay any particular amount of maintenance in accordance with a maintenance order
in terms of s 31(1). The Maintenance Act therefore , jealousy created speciali sed
courts, to wit 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.
This Court cannot therefore interpret s 2( a) of the Arbitration Act in a manner that
will be at odds with the purpose of the Maintenance Act.

[26] In terms of s 8(1) of the Divorce Act 70 of 1979 (the Divorce Act) , it is
possible for a maintenance order to be varied , rescinded, or suspended. This
section is equivalent to s 19 of the Maintenance Act. The arbitrator cannot be
clothed with the se powers imposed by the two Acts. The powers are bestowed
upon the courts only. Assuming for a moment that the first respondent’s contention
to the effect that he was not obliged to pay maint enance as ordered by the high
court is correct, it means, procedurally, he should have approached the
maintenance court for an application to discharge, vary, or suspend it. The
arbitrator could not discharge or vary such order.


9 Oxford Advanced Learner’s Dictionary(7th Edition) Oxford University Press, 2005

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[27] It is significant to mention that s 8(1) of the Divorce Act specifically
provides for the maintenance order or an order regarding custody, access, or
guardianship of a child as orders that can be varied, rescinded, or discharged. The
section did not include the proprietary order granted by the courts. Apart from the
fact that the Brookstein matter heavily relied upon by the first respondent dealt
with a delictual claim, this exception created by s 8(1) of the Divorce Act serves as
the main reason why reliance on this authority cannot advance his case.
Maintenance, like issues relating to custody, access including guardianship of
children, is and remains a live issue or dispute depending on the differing
circumstances of the parties. That is why access to the maintenance court is made
available pre and post -divorce. As already indicated above and with the risk of
repetition, this is so because any party can approach the court anytime after such an
order has been made to request the discharge, variation or setting aside of the
maintenance court order. The argument regarding res judicata is therefore
misplaced.

[28] A case that is close to the facts in this appeal is Ressell v Ressell . 10 In this
matter, the court refused to enforce a settlement agreement that was made an order
of court. The settlement agreement also stipulated that any disputes (post -divorce)
between the parties had to be referred to arbitration. A dispute existed concerning
access to a child after the divorce. 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. The
court further explained that this applies whether the dispute aro se before or after
the divorce.


10 Ressell v Ressell 1976 (1) SA 289 (W) at 291.

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[29] From the above analysis, it cannot be cont ended that the ensuing arrear
maintenance including the enforcement of the order are not connected with the
matrimonial cause or are matters incidental thereto. Section 2(a) of the Arbitration
Act is wide enough to keep such matters o ut of the field of arbitration. The appeal
court misdirected itself by deferring the issue to be dealt with by the arbitrator. The
issue that was before the maintenance court was not a dispute on the underlying
settlement agreement, but an enforcement of one of the p rovisions of the order of
the court.

[30] Lastly, the common law prohibits the ousting of the jurisdiction of or access
to, the courts.11 The appellant, therefore, in the worst-case scenario, could not have
been deprived of the choice of forums in which to pursue civil enforcement of the
maintenance order and cannot lawfully have waived her right to approach the
maintenance court in terms of the Maintenance Act. The legislation applies ex-lege
and obtains force by reason of the will and decision of the Legislature, not because
individuals elect to be subject thereto. 12 Consequently, the arbitration agreement
cannot in the circumstances of this matter supersede the jurisdiction of the
maintenance court.

[31] It would be remiss to conclude without dealing with the submission made by
the first respondent that the issue of the appellant not being able to afford
arbitration was not properly brought before the maintenance court and the
maintenance court erred by taking it into account. The converse is true. A letter
dated 20 August 2020 was annexed to the papers that were submitted by the first

11 Schierhout v Minister of Justice 1925 AD 417 at 424 (and applied more recently by this Court in Bafana Finance
Mabopane v Makwakwa and Another 2006 (4) SA 581 (SCA) para 21.
12 RMB Private Bank (A Division of Firstrand Bank Ltd) v Kaydeez Therapies CC (in liquidation) 2013 (6) SA 308
(GSJ) at 311G.

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respondent to the maintenance court. The date of this letter predates the date when
the appellant approached the maintenance court by a period of about six months.
This letter shows that at the time when the parties were engaged in the abort ed
arbitration, a concern had already been raised by the appellant regarding the cos ts
of arbitration. The maintenance court was within its powers to have regard thereto,
as by its nature, the procedure takes the form of an inquiry.

[32] In the result,the following order is granted
1 The appeal is upheld with costs, including costs of two counsel where so
employed.
2 The order of the high court is set aside and replaced with the following order:
‘The appeal is dismissed with costs’





________________________
A M KGOELE
JUDGE OF APPEAL

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Appearances

For the appellant: N Snellenburg SC with H J Van der Merwe
Instructed by: Symington De Kok Attorneys, Bloemfontein.

For the respondent: S Grobler SC with R Van der Merwe
Instructed by: Hendre Conradie Inc Rossouws Attorneys
Bloemfontein.