South African legislation appears to make provision for the practice and benefits of mediation outside of the typical family, labour and commercial law arenas. The popular area of civil law evictions appears to be a silent supporter of this valuable dispute resolution tool, through section 7 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 of 1998 (‘PIE Act’). Although an entire section is dedicated to mediation in the PIE Act, very few cases are reported to have made use of this useful process. Section 7 provides that:
7. (1) If the municipality in whose area of jurisdiction the land in question is situated is not the owner of the land the municipality may, on the conditions that it may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the municipality may determine. (2) If the municipality in whose area of jurisdiction the land in question is situated is the owner of the land in question, the member of the Executive Council designated by the Premier of the province concerned, or his or her nominee, may, on the conditions that he or she may determine, appoint one or more persons with expertise in dispute resolution to facilitate meetings of interested parties and to attempt to mediate and settle any dispute in terms of this Act: Provided that the parties may at any time, by agreement, appoint another person to facilitate meetings or mediate a dispute, on the conditions that the said member of the Executive Council may determine. (3) Any party may request the municipality to appoint one or more persons in terms of subsections (1) and (2), for the purposes of those subsections. (4) A person appointed in terms of subsection (1) or (2) who is not in the full-time service of the State may be paid the remuneration and allowances that may be determined by the body or official who appointed that person for services performed by him or her. (5) All discussions, disclosures and submissions which take place or are made during the mediation process shall be privileged, unless the parties agree to the contrary.”
Although the aforementioned section does not explicitly mandate that mediation be used prior to approaching Courts for an eviction order, Courts do have it within their discretion to direct that this be done.
In the case of the Occupiers of Erf 101, 102, 104 and 112 Shorts Retreat, Pietermaritzburg v Daisy Dear Investments (Pty) Ltd and Others, the Supreme Court of Appeal held that the Court a quo
“did not consider suggesting to the appellants that they request the municipality to refer the matter for mediation and settlement in terms of the provisions of PIE before the eviction order was issued. This aspect underscores why it was necessary to join the municipality as a party, in which case the municipality could have been ordered to submit to mediation. Section 7 of PIE provides for an appointment of a mediator by a municipality in a case where, as here, the occupied land does not belong to it. The function of the mediator is to facilitate meetings between the interested parties with a view to finding an equitable solution. Mediation is necessary particularly in cases where a large number of people is involved… It emerges from the facts on record that, had it been tried, mediation could possibly have yielded an equitable outcome.”
Moreover and interestingly, in the landmark Constitutional Court judgment of Port Elizabeth Municipality v Various Occupiers (also specifically quoted in the aforementioned case), Sachs J expressly stated that, “one of the relevant circumstances in deciding whether an eviction order would be just and equitable would be whether mediation has been tried. In appropriate circumstances, the courts should themselves order that mediation be tried”.
It appears that Courts are alive to the benefits and importance of attempting mediation in the resolution eviction matters. However, mediation and section 7 seem to lack the requisite support they need to thrive in this area of law and to be considered as a factor in determining the justice and equitability of granting eviction orders. (The latter being an appealing point of consideration in a separate forum).
Awareness may be the biggest hamper to mediation having its way in the practice area of civil law evictions. It may have been helpful if mediation was a mandatory process in this regard, as in the areas of labour and family law, in order for it to gain the recognition it deserves. However, in the absence of legislation mandating the use of mediation in eviction disputes, it may be suggested, in view of section 7, that perhaps municipalities in their respective jurisdictions be educated in this area and encouraged to pursue the avenue of mediation prior to approaching the Courts. Moreover, Courts should demonstrate a greater support for mediation and perhaps partake of Sachs J’s sentiments and consider eviction matters through the lens of section 7 and, in appropriate circumstances, mandate that matters pass through mediation prior to invoking litigation in pursuance of an eviction order.
As an aside, mediation appears to be hidden in plain sight in South African legislation. The PIE Act being a case in point. It is high time that our Courts and legal profession pool their resources and unearth the hidden provisions of mediation in our legislation. Perhaps this issue can be addressed in a follow up article on our website (http://adriaansattorneys.com/page/blog/) in due course.