It is known in all jurisdictions globally, the courts are over-flowing with cases and South Africa is no exception, leaving disputants waiting years for outcomes.

The Department of Justice and Constitutional Development (DoJCD) introduced voluntary court-annexed mediation (CAM) project in selective Magistrates’ courts in 2014 to provide access to justice as provided for in section 34 of the Constitution of 1996.  The benefit of mediation, to provide an accessible, affordable and a flexible process would allow any person regardless of social standing, to approach the magistrates courts for this service provided of course it was an appropriate civil/commercial dispute. While this purpose of mediation still rings true, the rules themselves have since been upgraded and flaunted in more than just the Magistrates’ courts.

Since 15 March 2022, the DoJCD has placed the CAM project on hold.  This means that mediation services are no longer carried out by the magistrate courts and no additional mediators have been enlisted on the court panel. The CAM project did however leave behind an amended Chapter 2, which included Rules 70 to 79, of the Magistrates Court Rules regulating the conduct of proceedings of the Magistrates’ Courts, by providing a step-by-step guideline on the usage of the process of mediation. Since June 2023 Rules 70 to 79 has been further amended by the Rules Board for Courts of Law (the Rules Board) to bring them in line with the now infamous Rule 41A of the Uniform Rules of Court (Rule 41A) which spotlighted mediation as the first port of call for dispute resolution prior to litigation.

The intended purpose of Rule 41A was to set out a roadmap of when and how to use mediation prior to litigation.  Included in this Rule is a definition of mediation – “mediation” means a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.

While this definition of mediation vaguely speaks to the principles of mediation, it attempts to provide some insight on the process of mediation.  The application of this Rule has however been mistakenly utilised in practice.

In P v O (21264/2019) [2022] ZAGPJHC 826 (30 September 2022) the applicant, Ms O(the respondent in the main divorce action), sought to rescind an order made on 14 December 2020. Within this recission application, an application was made to compel referral of the dispute to mediation in terms of rule 41A.

The court found that the underlying objective of Rule 41A is to make it mandatory for litigating parties to consider mediation at the inception of litigation.  In determining the applicability of Rule 41A and the application made compelling mediation, the court found  that the request for the compulsory mediation would not relate to the parties divorce action as such proceedings were instituted three years before the rule 41A amendment came into effect. Accordingly, the application to compel referral to mediation was regarded as unsustainable and failed.

This case is just one of many that illustrates wasted court days and costs in an attempt to wrongfully invoke mandatory compliance of the “mediation rules”.  With the rules being in its early stages of implementation there seems to be  a lack of a general understanding both from the public and within the legal fraternity of the purpose, process  and principles of mediation.   It has been noted that when querying for the services of a mediator, even practitioners have expressed uncertainty of  the appropriateness of mediation for the particular circumstances their clients are faced with.

To alleviate some of the uncertainty on the appropriate use of mediation, the Rules Board issued a notification dated 16 April 2024 referring to  Proposed Amendments To Magistrates’ Courts Rule 72 (Notice Agreeing To Or Opposing Mediation): Harmonisation Of The Magistrates’ Courts Mediation Rules With Uniform Rule 41A. This notification addressed the conundrum practitioners faced with regards to urgent applications and complying with Rule 41A(2) (a) and (b) of the Uniform Rules and Rule 72 of the Magistrates Court Rules.

The Rules Board indicated that in urgent applications there is no provision for what should occur if a party is unable to comply with the provisions of subrule (2) of Uniform Rule 41A and Rule 72 of the Magistrates’ Court Rules and issued the following:

In addressing the above issue, the Rules Board considered that Uniform Rule 41A should be amended by inserting a proviso to subrule (2) to indicate that “in urgent applications the court or a judge may dispense with compliance with paragraphs (a) and (b).”.

As part of its rule review function, the Rules Board has considered harmonizing the equivalent provisions in the Magistrates’ Courts Mediation Rules.

Magistrates’ Courts Rule 72:

(a) The amendments proposed to MCR 72 are to subrule (2).

(b) MCR 72 is proposed to be amended by inserting a proviso to subrule (2) of MCR 72

which would allow the court or a magistrate in urgent applications to dispense with compliance with subrules (1) and (2)

In addition, the Rules Board considered repealing MCR 79 which provides for costs. The Rules Board considered that the provisions of MCR 79 offend the voluntary nature and confidentiality of the mediation process.

Draft amended MC Mediation Rules are attached for consideration.

Uniform Rule 41A:

Regarding amendments to URC 41A, the Rules Board considered that:

(a) The provisions of subrule (9)(b) which is the equivalent of MCR 79, should be similarly repealed; and

(b) The existing subrule (9)(a) will become subrule (9).

The Rules Board then goes on to invite discussions on these proposed changes to the rules related to urgency and mediation.  Within the mediation industry, this is a welcome step and shows the willingness of the Rules Board to acknowledge the practical application of the rules through the lens of a mediated dispute and the appropriateness of mediation.

It is clear from this evolution of the “mediation rules” since 2014 legal practitioners will have to consider proposing mediation to their clients where appropriate. To add to the confidence of practitioners when weighing up the suitability of mediation with their clients, a basic understanding of the practical application principles of mediation, its process, the choice and role of the mediator would provide adequate guidance in developing a collaborative strategy and checklist to determine how best to use mediation to serve the interests of their clients.   With this essential practical knowledge, legal practitioners can fast track their clients dispute using mediation to establish the issues in dispute and the possibility of negotiating a favourable agreement on some or all of the issues.

Article published with the kind courtesy of Veerash Srikison at Fair Practice and also the facilitator of the Labour Guide one-day Introduction to Mediation training programme and can be be contacted at – www.fairpractice.co.za.