You are currently viewing Is Mediation Mandatory in Civil Litigation Proceedings?

Is Mediation Mandatory in Civil Litigation Proceedings?

It is no secret that the South African Court system is often overwhelmed, with many cases coming through the doors, and not enough people and resources to keep up with the very high demand. The introduction of Rule 41A of the Uniform Rules of Court, which came into effect on 9 March 2020, brought about a new focus on mediation as an alternative method of dispute resolution.

What is mediation?

Simply put, in mediation the parties will approach a neutral third party who does not judge the case but helps facilitate a discussion, limit the issues, and put them in perspective to resolve a dispute. Mediation is more affordable a traditional court case and has been proven to be rather effective in resolving certain conflicts peacefully.

It is promising to note that over 60% of matters settled through mediation are successful. 

In terms of Rule 41A of the Uniform Rules and Rule 72 of the Magistrate’s Court Rules, parties are now required to attempt mediation and the possibility of settlement before launching into any new civil litigation proceedings, which now makes a previously voluntary process a mandatory consideration when litigating.

Application of Rule 41A

Uniform Rule 41A(2)(a) states that:

In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.”

Rule 41A(2)(b) requires the defendant or respondent to serve a corresponding notice on the plaintiff or applicant indicating either their acceptance or rejection of the referral. This response should be served upon delivery of the notice of intention to defend or oppose or “at any time thereafter, but not later than the delivery of a plea or answering affidavit”.

The parties must not only indicate their agreement or opposition to mediation, they should also give good cause by stating the reasons upon which their averment is founded.

Rule 41A(2)(d) indicates that these notices are considered “without prejudice”, which means that any admission they contain cannot be used against either party in any subsequent litigation.

The Nature and Benefits of Mandatory Mediation

In the case of Kalagadi Manganese (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2021] ZAGP JHC  mediation was defined in terms of Rule 41A as ‘a voluntary non-binding non-prescriptive dispute resolution process’. Given its non-binding nature, mediation must be voluntary to be effective. Rule 41A does not change the nature of mediation and it does not aim to force unwilling parties to participate, it is mandatory only in the sense that it obligates parties to consider whether a matter is capable of being mediated and to then substantiate their decision.

The purpose of Rule 41A of the Uniform Rules and Rule 72 of the Magistrate’s Court Rules in terms of the mediation process is to expedite the resolution of dispute, simultaneously alleviating the courts’ case load and promoting access to justice.

The Consequences of Non-Compliance

If a party fails to comply with the rules they may receive notice of an ‘irregular step’ from their opponent. This notice requires the offending party to remedy the irregularity prior to taking further steps in proceedings, resulting in further delays and costs.

However, as was mentioned above, the court cannot force parties to mediate. In terms of Rule 41A(3)(b) of the Uniform Rules, the court may direct the parties to consider mediation at any point before judgment, but not that mediation can be imposed on the parties.

In Nedbank Limited v Wesley Groenewald Familie Trust [2021] FB (“Nedbank”) the defendant used the plaintiff’s failure to file a Rule 41A notice as a defence to oppose an application for summary judgment. While the plaintiff accepted this defence, the Court pointed out that the defendant had also failed to file their Rule 41A notice. The court indicated that on the facts, the matter was unlikely to be resolved through mediation anyway and dismissed the non-compliance defence.

In Nomandela v Nyandeni Local Municipality & Others [2021] ECM the Court recommended a practical approach, finding that the applicant’s failure to comply with Rule 41A did not justify striking the matter from the roll.

Contact Us

Please note that the information provided in this blog post is general in nature and should not be construed as legal advice. For specific legal guidance, we encourage you to reach out to our team of experienced attorneys.

Leave a Reply