The civil justice system in South Africa is undergoing a significant procedural transformation. In the Gauteng Division of the High Court, court-annexed mediation is increasingly treated not as an alternative to litigation, but as an integral step within litigation itself. The principle is simple, no trial before dialogue.
Rule 41A of the Uniform Rules of Court introduced the requirement that parties consider, and inform the court of their perspectives, on whether the matter is capable of alternative resolution. In terms of Rule 41A, the mediation process was an entirely voluntary process and the court was not directing the parties to subject the subject matter of the litigation between them to mediation.
On 22 April 2025, mandatory mediation was introduced in civil trial proceedings in the Gauteng Division of the High Court.
Two important judgments, Brondani v Brondani (2021 52977) [2025] ZAGPJHC and M.K.N v Dr Kalenga (65432/2018) [2025] ZAPGPPHC, provide valuable clarification on how these provisions operate in practice, particularly regarding mandatory participation and the allocation of mediation costs.
In Brondani, the plaintiff sued the defendant for damages arising from an alleged assault, with the defendant counterclaiming. The defendant refused to mediate, arguing in his Rule 41A notice that prior settlement discussions had failed and that a mediator would be unable to resolve factual disputes. He believed mediation would be a waste of time and costs. The court held that a litigant’s subjective belief that mediation will fail does not constitute a valid ground to avoid the process. Adams J emphasized that the purpose of the Protocol is to provide an efficient, cost-effective alternative to litigation and to foster a culture of cooperation. Extreme acrimony or a belief that mediation is futile are not “exceptional circumstances” warranting an excuse. A mediator is an impartial facilitator who helps parties communicate and craft their own solutions, not an adjudicator of facts. The judgment confirms that a party cannot unilaterally opt out of compulsory mediation simply because they believe it will fail.
In M.K.N, a medical negligence action was brought on behalf of a minor child who allegedly suffered brain damage at birth. The defendant consented to mediation but argued that he should not be liable for the costs, or that such costs should be reserved pending a constitutional challenge to the mediation directives. The plaintiff, the minor’s mother, was unemployed and could not afford the costs. The court confirmed that the Mediation Protocol is binding and that a party cannot consent to mediation on condition that parts of the Protocol be disregarded. The Protocol provides that mediation costs are typically shared equally and are costs in the cause, recoverable by the successful party at trial. Nharmuravate AJ held that, given the High Court’s role as upper guardian of minor children, it would be inequitable to require an unemployed mother to bear the costs exclusively. To do so would render the required mediation inaccessible and prejudice the minor child by delaying the trial. The judgment confirms that the court will ensure that financial hardship does not become a barrier to the required pre-trial mediation, particularly where minor children are involved, and that the rules on costs apply equally to all parties and cannot be unilaterally varied. In this case the court ordered that the applicant and first respondents are to share equally in the mediation costs.
These judgments collectively demonstrate the Gauteng High Court’s firm commitment to enforcing its mediation protocol. The Brondani decision makes clear that scepticism, strained relations between parties, or a belief that mediation will be futile do not amount to exceptional circumstances that justify avoiding the process. Likewise, M.K.N affirms that the mediation rules apply equally to all litigants and that the court will intervene where necessary to ensure that the process remains accessible, particularly in matters involving vulnerable parties such as minor children.
Together, the cases illustrate a judiciary intent on fostering a culture of early, constructive engagement. Mandatory mediation is not a procedural hurdle but a deliberate mechanism to promote efficiency, reduce costs, and encourage cooperation. As Jonathan Dingle aptly notes, “Mediation aims to improve communication and understanding by bringing both parties together and helping them find an early solution that everyone agrees with.” When viewed through this lens, the High Court’s approach signals a decisive shift: in Gauteng, there can be no trial before meaningful dialogue. The message is clear—mediation is not merely encouraged; it is an essential part of modern civil justice.
