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COURT-ANNEXED MEDIATION AND SECTION 34 OF CONSTITUTION

Compulsory court-annexed mediation provides that whenever an appearance to defend is instituted in civil proceedings, the matter is referred to mediation in an attempt to settle the dispute. In the event of the parties being unable to settle, the matter reverts to the conventional process of litigation in order to be adjudicated in open court. Should the matter be partially settled, the unresolved issues are referred to litigation for resolution in the usual course.

Section 34 of the Constitution of 1996, entitled ‘Access to Courts’, states that

‘everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

In light of this section some have expressed their concern that compulsory court-annexed mediation would infringe their constitutional right of access to courts.[1]

Compulsory court-annexed mediation is not conducted in a public forum or tribunal and is in fact a private and confidential process. By compelling disputants to pass through another (private) forum, which section 34 does not provide for, may be construed as unconstitutional. Furthermore, a mediator, by nature, cannot make a decision by application of law nor arrive at a judgment or final decision, as courts are able to. Thus, compelling disputants to pass through mediation may be seen as a further infringement on section 34. These arguments may be understood, however, may not necessarily be valid.

The process of compulsory court-annexed mediation provides that if litigants are unable to successfully mediate (settle) their dispute first, the matter proceeds through the usual court procedures for adjudication in open court. It should be understood that compulsory court-annexed mediation compels disputants to attempt to settle their dispute, however does not compel them to settle. Nothing prevents disputants from reverting to normal court procedures to have their matter judicially resolved in the event of non-settlement. It is also interesting to note that one of the compulsory requirements of rule 37(6) of the Uniform Rules of Court (pre-trial conference) is to attempt settlement.[2] Even though legal practitioners often consider this to be a mere a formality, the requirement remains mandatory. All litigants in terms of rule 37(6) are compelled to attempt the settlement of their dispute first, however are not compelled to settle. This rule (in principle) is not deemed to be an infringement of section 34 of the Constitution.

The process of compulsory court-annexed mediation is therefore not likely to contravene the constitutional right of access to courts, as some may be of the view. The right to return to mainstream litigation after attempting settlement through mediation is not taken away through the implementation of compulsory court-annexed mediation, but remains in place and available to litigants.

The Rules Board for Courts of Law initially introduced the concept of compulsory court-annexed mediation in 2011 in the form of court rules, entitled ‘Compulsory Mediation Rules of the High Courts and the Magistrates’ Courts’. Due the absence of any enabling legislation, these rules were subsequently redrafted into a set of voluntary court-annexed mediation rules in its current form of the Amended Magistrates’ Court Rules[3], as implemented in December last year. However, the future implementation of compulsory court-annexed mediation in South Africa remains a possibility. The former Minister of Justice and Constitutional Development previously stated[4] that he is fully aware that compulsorycourt-annexed mediation is an international trend in foreign jurisdictions and that the common view is that South Africa should follow suit. He therefore proposed that the South African Law Reform Commission investigates this matter and advises him on whether such compulsory mediation system should be implemented in South Africa. In 2014 he further advised that in view of the fact that the compulsory court-annexed mediation rules require enabling legislation, he requested the Department of Justice to investigate the desirability of implementing such legislation and requested them to prepare a draft Bill accordingly. The Minister further appointed a Mediation Advisory Committee who is responsible for inter alia assisting the Department in investigating the desirability and possibility of implementing such enabling legislation in South Africa.

In view of the above, should compulsory court-annexed mediation indeed be implemented in the South African civil justice system in future, any arguments supporting the contravention of the constitutional right of access to courts may be refuted.

Whitney Erin Maclons
LLB, LLM-Alternative Dispute Resolution/Mediation


[1]The Cape Law Society, at its annual general meeting in November 2011 hosted a workshop on the draft rules for compulsorycourt-annexed mediation, led by a panel of members from its specialist committee. Some questions were raised in response to the presentation; one in particular being whether compulsorycourt-annexed mediation would infringe the constitutional right to have a justiciable dispute heard by a court of law, in terms of section 34 of the Constitution. Hawkey K ‘Compulsory Mediation Rules to Shake Up Justice System’ (2011) 515 De Rebus 21.

[2] Rule 37 ‘(6) The minutes of the pre-trial conference shall be prepared and signed by or on behalf of every party and the following shall appear therefrom:

(a) The place, date and duration of the conference and the names of the persons present;

(b) if a party feels that he is prejudiced because another party has not complied with the rules of court, the nature of such non-compliance and prejudice;

(c) that every party claiming relief has requested his opponent to make a settlement proposal and that such opponent has reacted thereto;

(d) whether any issue has been referred by the parties for mediation, arbitration or decision by a third party and on what basis it has been so referred;

(e) whether the case should be transferred to another court;

(f) which issues should be decided separately in terms of rule 33 (4);

(g) the admissions made by each party;

(h) any dispute regarding the duty to begin or the onus of proof;

(i) any agreement regarding the production of proof by way of an affidavit in terms of rule 38 (2);

(j) which party will be responsible for the copying and other preparation of documents;

(k) which documents or copies of documents will, without further proof, serve as evidence of what they purport to be, which extracts may be proved without proving the whole document or any other agreement regarding the proof of documents.

[3]Amendment of Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa in GN 183 GG 37448 of 18 March 2014.

[4]At the Inaugural African Alternative Dispute Resolution and Arbitration Conference in 2013.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)