The courts have been overburdened with a large caseload and with cognizance of the need to alleviate same, Rule 41A of the Uniform Rules of Court was introduced and came into effect on 9 March 2020, providing for mediation as an alternative resolution to disputes.
Mediation is a form of dispute resolution wherein the parties in a dispute engage in negotiations of a jointly acceptable resolution, facilitated by an impartial and independent person known as a mediator. This form of dispute resolution is an alternative to litigation. Parties who are at the brink of or have already commenced litigation may benefit from mediation as it is more cost effective; offers expeditious dispute resolution; promotes reconciliation; and will mostly provide for a mutually beneficial resolution.
Rule 41A of the Uniform Rules of Court provides for the mandatory consideration of mediation as an alternative dispute resolution to litigation. 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”). Rule 41A assists to alleviate the caseload faced by our courts by ensuring that matters that are capable of being resolved without judicial intervention are resolved amicably through mediation.
In terms of Rule 41A, a plaintiff or applicant commencing new action or application proceedings must together with the summons or notice of motion serve on the defendant or respondent the aforesaid Rule 41A notice indicating their willingness or unwillingness to the referral of their dispute to mediation. The defendant or respondent, likewise, is also required to serve, together with their notice of intention to defend, the same Rule 41A notice. Rule 41A requires the parties to outline, on their Rule 41A notice, the reasons for their unwillingness to participate in mediation. Parties who have already commenced litigation may, at any time before judgment is granted, also elect to refer their dispute to mediation in terms of Rule 41A with the court’s consent.
In the case of Kalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of South Africa Ltd and Others [2021] ZAGPJHC 127 the court outlined four pillars of mediation in terms of Rule 41A, which are:
- The dispute resolution process is voluntary, non-binding and non-prescriptive;
- The terms of the process to be adopted are those agreed upon by the parties;
- The mediator facilitates the process to enable the parties to themselves find a solution and makes no decision on the merits nor imposes a settlement on them; and
- The process is confidential.
Mediation empowers the parties by putting them in control of the process. The notice and negotiations of a Rule 41A mediation are done “without prejudice”, which means that averments made by the parties at such mediation cannot be used by either of the parties in any litigation subsequent to said mediation.
Furthermore, the court in Growthpoint Properties Limited v Africa Master Blockchain Company (PTY) Ltd [2022] ZAGPJHC 836 stated that there is no sanction for non-compliance with Rule 41A. However, there may be a consequence to such non-compliance as the court may award a punitive cost order against the defaulting or unreasonable party if the matter was capable of resolution through mediation.
It is therefore advisable for parties to utilise Rule 41A of the Uniform Rules of Court and participate in mediation of their dispute for purposes of expediting resolution and minimising legal costs thereof.
