The arbitration of matrimonial disputes – a suggested amendment of the Arbitration Act

It is a truism that matrimonial disputes are among the most stressful and destructive of disputes, affecting not only the parties but also their children, and often, also their close relatives and friends. Sometimes matrimonial disputes can affect those in contractual relationships with both, or one or other of the parties. All of this makes obvious that matrimonial disputes especially require expeditious resolution. It is a truism too that our very busy courts cannot comply with that requirement. Section 38 of the Superior Courts Act 10 of 2013 can be invoked by the court to expedite matters by appointing a referee with wide flexible powers to determine many matrimonial issues and report to the court, which can then adopt the report. The difficulty, of course, is that that procedure entails the costs and delays attendant upon applying to a court for the required direction, and then those entailed in moving a court to adopt the report.

An alternative solution is to amend the Arbitration Act 42 of 1965 in order to provide for the arbitration of matrimonial matters. Section 2(a) of the Act prohibits arbitration of ‘any matrimonial cause or any matter incidental to any such cause … .’ The laudable intention of this provision is to elevate the importance of matrimonial disputes above those of other disputes given the centrality of the family and its importance. And so, the legislation is intended to place the control of matrimonial disputes firmly in the hands of the court. This objective can be achieved by amending the Act to provide for arbitration and, at the same time, for the ultimate control of the court, should either of the parties require it, the suggested amendment would repeal subs (a) of s 2 and add s 2 bis which ought to read:

(1) Matrimonial causes and matters incidental thereto may be subject to arbitration, provided that the court consisting of one or more judges may, at the request of either of the parties, hear an appeal against any award based on any record, which may have been kept of the arbitration proceedings, supplemented, in the discretion of the court, by further evidence, and provided further, that no appeal will lie against interim awards in the absence of exceptional circumstances.

(2) An award of divorce, which shall contain the reasoning of the arbitrator may only take effect by order of court.

The words ‘any record which may have been kept’ would take account of the fact that the record may be scanty. The words ‘exceptional circumstances’ are borrowed from s 17(2)(f) of the Superior Courts Act. The amendment would enable the parties to fashion an arbitration agreement, which would cater with as little delay as possible for the requirements of the case, and so interlocutory applications including those which would be brought in terms of r 43 of the Uniform Rules of Court could be dealt with differently from those involving final relief. The parties would, of course, be at liberty to follow any procedure they deem practical and effective, including those of the Arbitration Foundation of Southern Africa, or those of the Association of Arbitrators (Southern Africa), or the ‘Fast Low-Cost Arbitration’ route, which I discussed in 2023 (Sep) DR 47.

Judge Ezra Goldstein BA (UKZN)
LLB (UP) is an arbitrator and retired judge in Johannesburg.

Failing our children: The lower courts’ disregard of the best interests of the child in maintenance matters

The importance of the best interests’ principle in South Africa has long been settled. It is enshrined in the Bill of Rights and is further incorporated into the Children’s Act 38 of 2005. In all matters involving children, their best interests take priority. In matters before the High Courts, this position is undisputed. However, the same cannot be said for the lower courts. The apparent reasons for the double standards are uncertain. What is, however, evident is that in the lower courts and maintenance courts, the best interests’ principle does not carry the weight that it deserves. In fact, whether it is even considered is questionable. The lower court system is currently so overburdened that greater attention is spent on settling disputes than on asking the important question, namely does the settlement protect/promote the child’s best interests? This is the case whether one is dealing with seasoned magistrates or newbies to the Bench.

The situation mentioned above is even worse in the maintenance courts. With matters being postponed repeatedly for a number of reasons, with attempts for child maintenance being blocked at every turn by respondents wanting to avoid their maintenance obligations and with staff being overburdened with the number of complaints that they are required to deal with, the question of best interests does not even arise. Regrettably the current system, does not allow for this and children remain without any or adequate maintenance for years on end. Clearly, the current maintenance system is failing the very people that it is required to protect.

Is it not time that the current system is overhauled and that we stop paying lip-service to an ideal that we are clearly not protecting?

Carmel Jacobs LLB (UWC) LLM (UP) PhD (Leiden) is a Senior Lecturer in the
Department of Private Law at the University of the Western Cape.

This article was first published in De Rebus in 2023 (Dec) DR 5.