Unraveling the Shifren Clause: A South African Case of Divorce Settlement and Maintenance Dispute: The Million Rand Misunderstanding.

R.P.C v L.G.Y (A5075/2022) [2023] ZAGPJHC 1256 (2 November 2023)

Background and Context:

Divorce Settlement Agreement:

  • The parties involved had previously entered into a divorce settlement agreement, which was subsequently made an order of the court. This agreement laid out the financial responsibilities of the appellant towards the maintenance of the children post-divorce.

Financial Obligations:

  • According to the agreement, the appellant was obligated to pay a specified amount of cash maintenance per child each month. Additionally, the appellant was responsible for covering 100% of the children’s school fees, which included primary, secondary, and tertiary education, as well as half the costs of school uniforms and stationery.

Private Schooling:

  • At the time of the divorce and the agreement, all three children were enrolled in private schools. The agreement did not explicitly limit the appellant’s payment obligations to state school fees or place a cap on the amount payable for such fees.

Arrears and Dispute:

Maintenance Arrears:

  • The appellant fell into arrears concerning the cash component of the maintenance shortly after the divorce. Over time, these arrears accumulated to a significant sum, which the respondent claimed to be over R1 million.

Contention Over School Fees:

  • A key point of contention arose from the appellant’s interpretation of the agreement. He contended that he was only liable for state school fees and not the fees of the private schools the children were attending. This interpretation was based on the omission of the word “private” in the final draft of the agreement, which initially included it during the negotiation drafts.

Actions Leading to the Appeal:

Appellant’s Change of Stance:

  • The appellant initially complied with the agreement by paying both the private school fees and the cash maintenance. However, he later changed his stance, asserting that he was overpaying and that his financial obligations should be limited to state school fees.

Respondent’s Resistance:

  • The respondent resisted the appellant’s new interpretation, maintaining that the original agreement held and that the appellant was liable for the private school fees and other agreed-upon educational costs.

Ceasing Payments:

  • In 2011, the appellant stopped making the monthly maintenance cash payments as stipulated in the settlement agreement. He claimed that a variation to the agreement was reached, which allowed him to pay half of the school fees instead of the cash maintenance.

Alleged Variation of Agreement:

2011 Email and Claimed Acquiescence:

  • The appellant’s claim of a variation was based on an email he sent in 2011, which outlined a new arrangement for school fee payments and maintenance. He alleged that the respondent’s silence or lack of objection to this email constituted acquiescence to the variation.

Respondent’s Denial of Variation:

  • The respondent denied that any variation to the agreement had been agreed upon. She stated that she deliberately did not respond to the 2011 email as she did not agree with its terms and that she had consistently communicated to the appellant that he was in arrears with his maintenance payments.

These facts set the stage for the legal dispute that the court was asked to resolve: whether the settlement agreement had been varied by the parties’ subsequent conduct and communications, and whether the appellant was liable for the arrears claimed by the respondent. The court’s task was to interpret the agreement and the parties’ actions to determine the legal obligations of the appellant.

Arguments By The Parties

The Appellant:

Interpretation of the Settlement Agreement:

  • The appellant argued that the settlement agreement, when properly interpreted, only required him to pay for state school fees. He based this argument on the fact that during the negotiation of the agreement, the word “private” was removed in relation to his obligations to pay the children’s school fees.

Alleged Variation of the Agreement:

  • He contended that there was a mutual understanding and subsequent variation of the agreement, which was reflected in the 2011 email he sent to the respondent. In this email, he outlined a new arrangement where he would pay half of the school fees in lieu of the cash maintenance, which he believed was a more substantial contribution than required by the original agreement.

Respondent’s Acquiescence:

  • The appellant claimed that the respondent had tacitly agreed to this variation by her conduct, which included accepting the payments made under the new terms without objection.

Overpayment and Counterclaim:

  • The appellant also argued that he had overpaid maintenance under the varied agreement and, as such, counterclaimed for the amount he believed he was owed due to this overpayment.

The Respondent:

No Variation of the Agreement:

  • The respondent maintained that the settlement agreement had not been varied. She argued that the agreement was clear in its terms and that the appellant was obligated to pay the private school fees as the children were attending private schools at the time of the divorce.

Lack of Written Variation:

  • She pointed out that any variation to the agreement would need to be in writing and signed by both parties, as stipulated by the original agreement’s non-variation clause. Since she never agreed in writing to any variation, the original terms remained in effect.

Appellant’s Delinquency:

  • The respondent contended that the appellant had unilaterally decided to interpret the agreement in a way that reduced his financial obligations and that he had been delinquent in his payments, resulting in significant arrears.

Communication of Arrears:

  • She provided evidence of consistent communication to the appellant regarding the maintenance arrears, demonstrating her non-acceptance of any varied terms and her insistence on compliance with the original agreement.

Both parties presented their arguments based on their interpretations of the settlement agreement, the alleged variation, and the subsequent conduct. The appellant focused on the supposed variation and his interpretation of the terms, while the respondent emphasised the lack of formal variation and the appellant’s failure to fulfill his financial obligations as originally agreed. The court was tasked with examining these arguments in light of the evidence and the applicable legal principles to determine the outcome of the case.

Court’s Interpretation of the Law:

Contractual Interpretation Principles:

  • The court applied the principles of contractual interpretation, which require that the intention of the parties be ascertained primarily from the language of the document itself when the language is clear.
  • The court referenced the case of Endumeni, which allows for extrinsic evidence to be considered in understanding the context of the agreement, but within the confines of the integration rule. This rule prevents the use of prior negotiations and subjective intentions to contradict or vary the written terms of a contract.

Admissibility of Evidence:

  • The appellant attempted to introduce evidence of negotiations leading up to the settlement agreement to support his claim that the agreement had been varied. However, the court found this evidence inadmissible because it sought to alter the clear terms of the written agreement, which is prohibited by the integration rule.

Interpretation of the Settlement Agreement:

  • The court scrutinised the settlement agreement and found no ambiguity in its terms that would necessitate the consideration of extrinsic evidence. The agreement did not specify “state” or “private” school fees, which the appellant used to argue for his interpretation. However, the context and conduct of the parties indicated that the fees of the private schools attended by the children at the time of the agreement were intended to be covered.

Variation of Contract:

  • The court considered the appellant’s claim that the settlement agreement had been varied by a subsequent agreement. For a variation to be valid, it would need to be in writing and signed by both parties, as per the original agreement’s “non-variation” clause (often referred to as a Shifren clause in South African law).
  • A Shifren clause, named after the case of Shifren v Van der Linde & others 1960 (4) SA 452 (A), is a provision commonly included in South African contracts which stipulates that no amendment or variation of the contract shall be effective unless it is in writing and signed by both parties. This clause is intended to provide certainty and to prevent disputes about whether the terms of a contract have been verbally or tacitly altered.
  • The purpose of a Shifren clause is to ensure that the parties’ obligations are clear and that any changes to the contract are formally acknowledged and agreed upon, thereby avoiding the potential for misunderstandings or unauthorised modifications. It is a protective measure that reinforces the principle that written contracts represent the definitive agreement between the parties.
  • In the context of this case, the court considered the presence of a Shifren clause in the settlement agreement to determine whether the alleged variation of the agreement by the appellant (such as through an email or conduct) was legally binding. Since a Shifren clause requires written and signed agreement for any variation, any other form of alleged agreement or variation that does not meet these criteria would typically not be recognised by the court.
  • The appellant pointed to an email from 2011 as evidence of this variation. However, the court found that the respondent’s lack of written response and consistent communication of the appellant’s maintenance arrears did not support the inference of a tacit agreement to vary the terms.

Legal Principles Applied to the Alleged Variation:

  • The court applied legal principles regarding tacit agreements, which require clear and unequivocal conduct that establishes a mutual intention to contract on the alleged terms. The respondent’s conduct did not indicate such an intention.
  • The court also considered the Electronic Communications and Transactions Act in relation to the appellant’s claim that an electronic “signature” constituted agreement. The court rejected this argument, finding it to be a contrivance and not in line with the legal requirements for a valid variation of contract.


In summary, the court found that the terms of the settlement agreement were clear and unambiguous. The agreement outlined the appellant’s obligations regarding the payment of maintenance and school fees without specifying that the fees were limited to state schools. The court inferred from this that the fees of the private schools, which the children were attending at the time of the divorce, were intended to be covered. The appellant’s argument that he was only responsible for state school fees was not supported by the language of the agreement. The court considered the appellant’s claim that the settlement agreement had been varied by a subsequent agreement, as purportedly evidenced by the 2011 email. However, the court found that there was no admissible evidence of such a variation. The respondent had not provided a written response to the 2011 email, which was a necessary condition for a variation according to the agreement’s non-variation clause.

This clause required that any variation be in writing and signed by both parties. The respondent’s silence or lack of written consent could not be construed as agreement to the variation. In reaching its conclusion, the court applied established legal principles regarding the interpretation of contracts and the requirements for their variation. The court emphasised the importance of the integration rule, which protects the integrity of written agreements by preventing parties from using extrinsic evidence to alter their clear terms. Additionally, the court considered the principles governing tacit agreements and found that the respondent’s conduct did not justify a reasonable inference that a variation had been agreed upon.

Based on the above interpretations and applications of the law, the court dismissed the appellant’s arguments. It upheld the original judgment, which found that the appellant had not established a variation of the agreement and was therefore in arrears for the maintenance payments as stipulated in the original settlement agreement. The court’s decision reinforced the principle that clear and unambiguous contracts must be honoured as written, and any variations must meet the strict requirements set out in the contract itself.

In conclusion, the court’s meticulous application of contractual interpretation principles led to the affirmation of the original judgment, holding the appellant accountable for the full extent of his financial obligations as per the unvaried settlement agreement.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.