Large caseloads and court roll backlogs have been overburdening the judicial process for some time now, especially in the Gauteng Division of the High Court. To alleviate this, under the Honourable Judge President of the Gauteng Division, the Mediation Protocol was recently adopted in March 2025. This Protocol breathes life into Rule 41A of the Uniform Rules of Court and aims to institutionalise mediation as a serious alternative to litigation. This article explores same.
Understanding Mediation
Mediation is a voluntary and confidential process where a neutral third party, known as the mediator, assists parties in a dispute to identify issues in dispute, explore resolutions, and arrive at a mutually acceptable agreement. Importantly, the mediator does not impose any decision on the disputing parties, rather, the process is designed to facilitate dialogue, promote understanding, and empower parties to formulate their own solutions.
What is Court-Annexed Mediation?
Court‑annexed mediation integrates the mediation process into the court system and litigation process. It requires parties either to consider or to participate in mediation at a specified stage of their litigation. Parties may refer a matter to mediation before litigation begins or, if litigation proceedings have commenced, before judgment is delivered. The court itself may invite parties to mediate, ensuring that alternative dispute resolution (mediation) is considered as part of the judicial process.
Rule 41A of the Uniform Rules of Court makes it mandatory for litigants to consider mediation. The mediation itself is voluntary, however, Rule 41A makes it mandatory to consider mediation through service of a notice indicating the party’s willingness or unwillingness to engage in mediation as prescribed in Form 27 of the First Schedule (hereinafter “the Rule 41A Notice”).
Mediation protocol for the Gauteng Division
In March 2025, the Gauteng Division implemented the Mediation Protocol Applicable in the Gauteng Division of the High Court to apply uniformly across both the Pretoria and Johannesburg High Court. The purpose of the Mediation Protocol is to ensure compliance with Rule 41A, promote efficient administration of justice, and transform access to courts by alleviating case roll congestion and backlog.
The Protocol applies to all civil trials, including but not limited to commercial disputes, delictual claims, family disputes and personal injury claims, and specifically all actions against habitual litigants such as the Road Accident Fund and MEC for Health, entities known for high litigation volumes and procedural delays.
In term of the Protocol, disputes are initiated by an initial or, if necessary, an amplified Rule 41A notice, which must set out proposed mediators, issues in dispute, and anticipated expert evidence. The Court may also direct parties to comply the Mediation Protocol.
Dealing with Delinquent Conduct
If a party fails to respond timeously, or at all, to an Initial or Amplified Rule 41A Notice, or unreasonably obstructs the appointment of a mediator or progress of the mediation, that party is deemed delinquent. The aggrieved party may then approach the Special Interlocutory Court for a compelling court order requiring cooperation within a specific period. Should the delinquent party still default, the aggrieved party is excused from mediation, may enrol the matter on the Default Judgment roll, seek contempt and striking‑out orders, and recover costs on a punitive scale. Moreover, a party who misses a scheduled mediation without providing at least 48 hours’ written notice will also be considered delinquent and held liable for wasted costs. This firm stance serves as a powerful deterrent against procedural abuse, especially by habitual litigants, and promotes timely and meaningful participation in mediation.
Benefits of the Mediation Protocol
Mediation empowers parties to resolve disputes collaboratively and efficiently, without sacrificing their right to formal adjudication. The process is driven by the parties, cost-effective, and confidential. Should parties reach a settlement, it must be recorded in writing and made an order of court or formalised contractually to be enforceable. If no settlement is reached, the parties are free to continue with litigation or pursue arbitration.
This development is especially encouraging for litigants who find themselves up against habitual litigants such as the Road Accident Fund or the Gauteng MEC for Health. The Protocol introduces a new layer of procedural accountability that holds these habitual litigants to higher standards of cooperation and engagement. It offers not only relief from unnecessary delays, but a new level of procedural fairness and access to timely justice. For many litigants, this is more than just a reform, it is a breath of fresh air and a meaningful pathway to timely justice.
