Van Jaarsveld v Van Jaarsveld and Another

The appellant (Elmarie Van Jaarsveld) and first respondent (Wynand Jacobus Van Jaarsveld) were married and divorced on 4 June 2015. The decree of divorce incorporated a deed of settlement which included: (1) clause 3.1 providing for spousal maintenance that would cease if the appellant remarried, cohabited with another man, or upon her death (the dum casta clause); and (2) clause 11 providing that any dispute between the parties regarding their rights, duties, or liabilities arising from the deed of settlement was to be submitted to arbitration. Around 2018, disputes arose and an arbitrator was appointed in August 2020, but the arbitration proceedings never materialized as the appellant did not file a statement of claim. On 1 March 2021, the appellant approached the magistrate's maintenance court with an application to enforce the maintenance order and recover arrear maintenance in terms of section 26 of the Maintenance Act 99 of 1998. The maintenance court granted the order on an ex-parte basis. The first respondent objected to the jurisdiction of the maintenance court, contending that the arbitration clause excluded its jurisdiction. The maintenance court dismissed the objection, but on appeal, the Free State High Court upheld the first respondent's appeal, holding that only an arbitrator could decide the matter.

• Whether a dispute regarding arrear maintenance is arbitrable in light of section 2(a) of the Arbitration Act 42 of 1965
• Whether arrear maintenance constitutes a 'matrimonial cause' or a 'matter incidental to any such cause' within the meaning of section 2(a) of the Arbitration Act
• Whether an arbitration clause in a deed of settlement made an order of court can oust the jurisdiction of the maintenance court to enforce maintenance orders and recover arrears
• Whether the arbitrator should decide his own jurisdiction in respect of maintenance disputes

The appeal was upheld with costs, including costs of two counsel where employed. The order of the high court was set aside and replaced with an order dismissing the appeal with costs.

The binding legal principles established are: (1) Section 2(a) of the Arbitration Act 42 of 1965, which prohibits arbitration of 'any matrimonial cause or any matter incidental to any such cause', is wide enough to exclude from arbitration disputes concerning arrear maintenance and enforcement of maintenance orders; (2) Arrear maintenance and enforcement of maintenance orders constitute matters incidental to matrimonial causes within the meaning of section 2(a), whether the dispute arises before or after divorce; (3) An arbitration clause in a deed of settlement, even when made an order of court, cannot oust the jurisdiction of the maintenance court to enforce maintenance orders and recover arrears, as this would contravene section 2(a) of the Arbitration Act and the purpose of the Maintenance Act; (4) The powers to vary, rescind, or suspend maintenance orders under section 8(1) of the Divorce Act 70 of 1979 and section 19 of the Maintenance Act 99 of 1998 are vested exclusively in courts and cannot be exercised by arbitrators; (5) Parties cannot by private agreement waive access to the maintenance court as the Maintenance Act applies ex lege by force of legislative will, not by individual election.

The Court made several important observations: (1) While arbitration agreements are not inherently contra bonos mores and party autonomy requires deference to arbitral decisions, arbitration does not oust the jurisdiction of courts; (2) The characterization of disputes is crucial - the first respondent's attempt to characterize the dispute as concerning the dum casta clause (a duty to maintain) rather than arrear maintenance was rejected as ill-conceived; (3) The Court noted that the Maintenance Act criminalizes failure to pay maintenance in accordance with a maintenance order under section 31(1), emphasizing the serious nature of maintenance obligations; (4) The Court distinguished the case from Brookstein v Brookstein (which dealt with delictual claims and proprietary consequences becoming res judicata post-divorce), noting that maintenance, like custody and access to children, remains a live issue post-divorce unlike proprietary matters; (5) The Court commented on the procedural error of the first respondent - if he believed he was not obliged to pay maintenance, he should have approached the maintenance court for an application to discharge, vary, or suspend the order rather than simply refusing to pay; (6) The Court validated the maintenance court's consideration of the appellant's inability to afford arbitration costs, noting this concern had been raised in correspondence before the maintenance court application was made.

This case is significant in South African law as it clarifies the scope of section 2(a) of the Arbitration Act 42 of 1965 in relation to maintenance disputes. It establishes that enforcement of maintenance orders and recovery of arrear maintenance are matters incidental to matrimonial causes and therefore not arbitrable, even where parties have entered into a broad arbitration agreement in their divorce settlement. The judgment reinforces the protective nature of maintenance legislation and the specialized jurisdiction of maintenance courts, ensuring that vulnerable parties (typically women) cannot be deprived of access to these cost-effective and speedy forums through arbitration clauses. It also confirms that certain statutory rights, particularly those created for the protection of vulnerable parties, cannot be waived by private agreement and apply ex lege regardless of party autonomy. The case demonstrates the limits of party autonomy in arbitration where public policy and statutory schemes designed to protect vulnerable parties are concerned.