Compulsory mediation in South African courts needs legislation and public funding, not a practice directive

Introduction

From 1 January 2027, a litigant in the Gauteng Division of the High Court who wants a civil trial date will have to attach a report from an accredited mediator to the request (Judge President of the Gauteng Division, 2025). The directive behind that rule says trial dates in the division already run to 2031 and that as many as 85 per cent of matters settle on the day of trial. That is a fair description of a system that has jammed. So the instinct behind the directive is easy to understand, and the literature on court-annexed mediation in South Africa keeps coming back to the same complaint, namely that mediation is used far too little (Muller and Nel, 2021; Muller and Swanepoel, 2023).

This paper argues for something narrower than a defence or an attack on mediation. Encouraging people to consider mediation and forcing them through it are different things, and South Africa is currently moving from the first to the second by way of a practice directive. The only rule of general application, Rule 41A of the Uniform Rules of Court, stops well short of compulsion (Carels, 2024). A South African Law Reform Commission discussion paper has floated a Mediation Act that would make mediation mandatory for specified categories of dispute (South African Law Reform Commission, 2025). My position is that compulsion can be defended where it rests on legislation, comes with public money for people who cannot pay a mediator, and leaves a workable exit. The Gauteng directive, in the version I could read, secures the first of those only weakly and says little about the other two. The sections below set out what Rule 41A asks, what the legal status of the directive really is, how the access to justice arguments cut, and what arbitration, labour, consumer and ombud systems suggest.

What Rule 41A actually asks of litigants

Rule 41A took effect on 9 March 2020 and works mostly through paperwork. A plaintiff or applicant serves a notice with the summons or notice of motion saying whether they agree to mediation or oppose it, and the other side does the same by the time it pleads or files an answering affidavit (Carels, 2024; Muller and Nel, 2021). Nobody has to mediate. In the words of the Northern Cape court in FFS Finance, mediation is voluntary, so a court cannot simply order it, although the rule does let a judge direct parties to consider it (FFS Finance v Groenewald, 2023). It is an odd arrangement when you look at it closely, a rule that makes thinking about a voluntary process compulsory, and commentators have noticed (Carels, 2024).

The teeth sit in costs. Rule 41A(9)(b) allows a court to take a party’s refusal to mediate into account when it makes a costs order, and Carels (2024) reads that provision together with Koetsioe, a High Court decision she cites, as a signal that parties should think seriously before opposing mediation. The magistrates’ courts have had voluntary court-annexed mediation since 2014 but, on Muller and Nel’s (2021) reading, without any sanction for an unreasonable refusal, which is one reason they urge a Rule 41A style provision there. In practice judges have used the High Court power carefully. In FFS Finance a defendant tried to turn mediation into a special plea, and the court dismissed it with costs because the plaintiff was unwilling, nothing exceptional pointed to mediation, and further particulars would pin down the dispute better (FFS Finance v Groenewald, 2023).

The weak spot of the whole design is information. The notices are not placed on the court file, so the judge hearing the matter often has no idea why somebody said no (FFS Finance v Groenewald, 2023). Muller and Swanepoel (2023) press the state to collect data on court-annexed mediation, and Muller and Nel (2021) found that no full empirical study of the magistrates’ court scheme exists, with no success-rate statistics either. Without numbers, nobody can say whether a Rule 41A notice leads to an actual mediation or only to a line of boilerplate. That matters for what follows, because the case for hardening the rule rests on an assumption about behaviour that we have not measured.

A directive does what a rule would not

The Gauteng directive was issued on 22 April 2025 and relies on section 8(4)(b) of the Superior Courts Act 10 of 2013 and section 173 of the Constitution, the court’s power to regulate its own process (Judge President of the Gauteng Division, 2025). It applies to civil trials. During a transition that runs to the end of 2026, a matter without a mediator’s report thirty court days before trial is struck from the roll with no order as to costs, and seven court days for Road Accident Fund matters. From 1 January 2027 no trial date is issued at all without a report, and commercial court matters go through the judicial case manager instead. A party who drags its feet can be met with a compelling order. Whatever one thinks of mediation, those are sanctions, and heavier ones than anything in Rule 41A (Carels, 2024; Judge President of the Gauteng Division, 2025).

The legality of all this was challenged and, so far, not decided. In Personal Injury Lawyers’ Association v Judge President, a full bench in July 2026 upheld a preliminary point under section 47(1) of the Superior Courts Act. The applicants had asked the Chief Justice for consent to sue a judge president only after issuing their application, and the court held that the proceedings were a nullity and dismissed them with costs (Personal Injury Lawyers’ Association v Judge President, 2026). The court accepted that the applicants had standing and joined the Law Society of South Africa, but it did not rule on whether the directive falls within section 173 or is constitutional. It also noted that the applicants were not attacking mediation as such, only its compulsory character and its use as a condition of trial enrolment. A newspaper report from September 2026 says the Law Society and the association are seeking leave to appeal to the Supreme Court of Appeal, that no hearing date has been set, and that the directive stays in force meanwhile (Sunday Times, 2026).

So the position on 18 October 2026 is strange. The question that matters most, whether a judge president can make mediation a condition of getting a trial date, was argued over two days in June and left unanswered. The directive is operating, litigants are preparing for 1 January, and the instrument carrying the compulsion is the one least exposed to legislative debate. Rule 41A, by contrast, is a rule of court that parties can read, apply and argue about (Carels, 2024). Abstractly, nothing is wrong with a court managing its trial roll. But a rule that strikes matters off the roll for want of a private mediator’s report is regulating access, not only process, and access is something section 34 of the Constitution speaks to directly (Republic of South Africa, 1996; Judge President of the Gauteng Division, 2025).

Access to justice cuts both ways

Section 34 gives everyone the right to have a dispute that law can resolve decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum (Republic of South Africa, 1996). A mediator decides nothing, so a mediation step does not strictly take the hearing away. The real argument is about conditions and delay. On one side, Muller and Swanepoel (2023) argue that litigation costs and narrow legal aid eligibility already keep many people out of court, and that adversarial proceedings suit many disputes badly. Their example is a medical negligence matter in which the merits were conceded, yet the trial on quantum ran for 45 days, took about seven years to decide and involved a claim of R38 million, a case where referral to mediation might have saved time, money and a lot of distress.

On the other side, a gate in front of the trial is only as fair as the price of getting through it. Muller and Nel (2021) report that mediators’ fees in the magistrates’ court scheme, at R225 and R300 per half hour for the two levels of mediator, remain out of reach for many people, and that the regulations promised for free or subsidised mediation had not been put in place when they wrote. In the Gauteng litigation, the association told the court, according to a press report of the hearing, that mediation could cost between R33,000 and R47,000 per client, against the R15,000 the Road Accident Fund had agreed to pay for each mediation (BusinessDay, 2026). I would not treat those figures as proved. They do show the shape of the worry. Dugard and Seme (2023) remind us that exclusion in South African justice has outlived apartheid’s legal architecture, and an extra paid step before a trial lands hardest on people who were already struggling to reach one.

Both camps are arguing from thin evidence, which is the awkward part. The directive’s own premise, that up to 85 per cent of matters settle on the trial date, shows that settlement happens late (Judge President of the Gauteng Division, 2025). It does not show that a compulsory mediation earlier produces a better settlement, or any settlement at all, and Muller and Nel (2021) found that the Department of Justice planned to refer 65 per cent of civil cases to magistrates’ court mediation in 2019/2020 and, on the authors’ reading of its annual report, referred none. Carels (2024) is more hopeful, defending mediation even in high-conflict parenting disputes and leaning towards a compulsory family justice system, but she writes largely from her own experience as a mediator, which is useful testimony and still not outcome data.

What other dispute resolution systems suggest

Arbitration is the form of private dispute resolution South Africa has been most comfortable with, and its legitimacy rests on consent. Under the Arbitration Act 42 of 1965 an award is final and not subject to appeal unless the agreement says otherwise, it can be made an order of court, and a court may set it aside only for misconduct, gross irregularity or excess of power, or if the award was improperly obtained (Republic of South Africa, 1965). Baboolal-Frank (2022) treats party autonomy as the cornerstone of enforcement and observes that South African courts do not distinguish between national and international awards. Kurasha (2022) is less kind to the 1965 Act, describing it as weak on party autonomy and open to court intervention, and she presents the International Arbitration Act 15 of 2017 as a real improvement. Either way, binding arbitration is defensible because people chose it, and compulsory mediation cannot borrow that argument.

What compulsory mediation can borrow is a statute and an institution. Horn and Christians (2025) describe how sectional title disputes moved from litigation to arbitration under a management rule and then to the Community Schemes Ombud Service, whose two stages of conciliation and adjudication have reduced the number of disputes reaching the courts and saved applicants time and money. They also say case law from matters that went through the Ombud and still landed in court shows real implementation problems, and they recommend better training for adjudicators, a provision discouraging court applications where the Ombud should decide, and an internal appeal. The lesson is mixed in a useful way. Legislated channelling of disputes can work, and it works better where somebody has designed the institution, funded it and trained its people, which is exactly what a practice directive cannot do alone (Muller and Nel, 2021).

Labour and consumer law show two further things. Germishuys-Burchell (2024) traces how the Labour Relations Act 66 of 1995 promised certainty and little administrative discretion, yet amendments over thirty years have widened third-party intervention in collective bargaining, and she asks whether the Act still rests on voluntarism. Whatever the answer, the argument about how far to compel is being conducted in the statute, in public. On the consumer side, section 70 of the Consumer Protection Act 68 of 2008 lets a consumer refer a dispute to an ombud, an accredited industry ombud, a conciliation, mediation or arbitration provider or a provincial consumer court, and an agreed outcome can be recorded as a consent order (Republic of South Africa, 2008). Ngcobo (2024) argues that those encouraged processes are still slow and not affordable enough, so that many consumers abandon low-value claims. A statutory home, in other words, does not cure cost and delay by itself.

Technology might ease that problem, though the evidence is early. Ngcobo (2024) proposes a three-tier online system run on the National Consumer Commission’s site, moving from guided conciliation to an automated decision to binding arbitration on appeal, while Cupido (2024) asks whether online dispute resolution is a disruptive and sustainable alternative to litigation that South African law could realistically absorb. Both are proposals and questions rather than findings. The one working comparison in my sources is the Lagos Multi-Door Courthouse, which Muller and Nel (2021) describe as court-connected, fed mostly by voluntary walk-ins, staffed only by accredited mediators and able to reduce or waive fees for indigent parties, with a reported settlement rate of about 65 per cent in 2014 and 2015. Notice what is common to it and the Ombud service. Funding and accreditation come first, and compulsion, where it exists, comes later.

A defensible route to compulsion

The first requirement is legislation. The Law Reform Commission’s Discussion Paper 168 proposes certification of mediators, a Mediation Council, enforceable settlement agreements and mandatory mediation for specified categories of dispute, with exemptions, and the comment period closed on 30 April 2025 (South African Law Reform Commission, 2025). I could find no sign that a Mediation Act has been passed. If Parliament does decide that some categories should have to mediate first, the decision would then carry democratic weight, exemptions could be drafted openly, and the sanctions would not depend on what a single division chooses to do with its trial roll (Germishuys-Burchell, 2024; Muller and Swanepoel, 2023).

The second is money and accreditation. The directive demands an accredited mediator, but Muller and Nel (2021) found the earlier magistrates’ court scheme struggling with unaccredited training institutions, no published list of approved providers and a minister able to exempt mediators from training without stated criteria. A compulsory scheme that repeats those gaps would shift cost onto litigants while claiming to widen access. Free or means-tested mediation, a Settlement Week type programme on the Lagos pattern, and state agencies writing mediation clauses into their own contracts would go a long way, and the Road Accident Fund’s commitment to pay for mediations is a start (BusinessDay, 2026; Muller and Nel, 2021).

The third is an exit and a measuring stick. Compulsion should mean attendance, never settlement (Muller and Swanepoel, 2023), and a party should be able to show a court why a matter is unsuitable, whether it needs urgent relief or an authoritative ruling that a confidential settlement would not give. Meanwhile the existing Rule 41A model, notices plus cost consequences, remains a proportionate way to nudge behaviour, and it can be improved by recording reasons and counting outcomes (Carels, 2024). If the Gauteng directive survives its appeal, then at the very least its 1 January 2027 trigger should be tied to published fees, an accredited mediator list and a clear exemption route, with data collected from the first month.

Conclusion

South Africa is right to take its congested civil courts seriously and right to take mediation seriously as part of the answer. Rule 41A shows a cautious way to do it, asking litigants to consider mediation and leaving them free to refuse at some risk to their costs. The Gauteng directive goes further (Judge President of the Gauteng Division, 2025), but it does so through an instrument whose reach the courts have not yet tested, since the July 2026 decision turned on a procedural defect and left the merits alone (Personal Injury Lawyers’ Association v Judge President, 2026).

The comparison with arbitration, labour, consumer and ombud systems suggests that compulsion becomes defensible when it is legislated, funded and open to exemption, and that it fails the access test when it is bolted onto a litigant’s existing costs (Horn and Christians, 2025; Ngcobo, 2024). The evidence for what compulsory mediation actually achieves in South Africa is still thin, so the sensible course is to legislate carefully, subsidise real access, and measure what happens. Until then, a trial date that depends on somebody else’s mediation fee looks like a hard thing to defend under section 34 (Republic of South Africa, 1996; Dugard and Seme, 2023).

Reference list

Baboolal-Frank, R. (2022) A review of judicial enforcement of arbitral awards in South Africa. Conflict Resolution Quarterly, 40(2), pp. 271-277. doi:https://doi.org/10.1002/crq.21364

Carels, M. (2024) An evaluation of mediation in high-conflict situations: a reflection on mediating parenting plans. Journal for Juridical Science, 49(1), pp. 24-52. doi:https://doi.org/10.38140/jjs.v49i1.8175

Cupido, R. (2024) Online dispute resolution as legal disruption: what effect could it have on the South African dispute resolution landscape? Potchefstroom Electronic Law Journal, 27, article a17231. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a17231

Dugard, J. and Seme, N. (2023) ‘Access to justice in South Africa’, in Cunneen, C., Deckert, A., Porter, A., Tauri, J. and Webb, R. (eds) The Routledge International Handbook on Decolonizing Justice. London: Routledge, pp. 346-356. doi:https://doi.org/10.4324/9781003176619-36

Germishuys-Burchell, W. (2024) On collective bargaining, advisory arbitration and legal intervention: the 1995 Labour Relations Act as a product of criticism of the 1956 Labour Relations Act. Potchefstroom Electronic Law Journal, 27, pp. 1-21. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a16947

Horn, M. and Christians, N. (2025) Dispute resolution in sectional title schemes: ideas for improving the Ombud Service. Potchefstroom Electronic Law Journal, 28, pp. 1-26. doi:https://doi.org/10.17159/1727-3781/2025/v28i0a18730

Kurasha, P.E.R. (2022) South Africa’s jurisdictional challenge with the under-development of cross-border commercial litigation: litigation v arbitration. De Jure, 55(1), pp. 1-27. doi:https://doi.org/10.17159/2225-7160/2022/v55a1

Muller, E.C. and Nel, C.L. (2021) A critical analysis of the inefficacy of court-annexed mediation (CAM) in South Africa: lessons from Nigeria. Journal for Juridical Science, 46(2), pp. 26-55. doi:https://doi.org/10.18820/24150517/jjs46.i2.2

Muller, E.C. and Swanepoel, C.F. (2023) Dispute resolution does not need to be a battle: the case for mediation as transformative dispute resolution mechanism. Speculum Juris, 37(1), pp. 58-72. Available at: https://www.saflii.org/za/journals/SPECJU/2023/4.pdf (Accessed: 18 October 2026).

Ngcobo, M.T. (2024) Artificial intelligence and blockchain technologies in online dispute resolution: a solution to consumer disputes in South Africa? Potchefstroom Electronic Law Journal, 27, article a14648. doi:https://doi.org/10.17159/1727-3781/2024/v27i0a14648

Legislation and case law

BusinessDay (2026) Gauteng judge president’s power to issue mandatory mediation directive in dispute, 14 June. Available at: https://www.businessday.co.za/news/law/2026-06-14-gauteng-judge-presidents-power-to-issue-mandatory-mediation-directive-in-dispute/ (Accessed: 18 October 2026).

FFS Finance South Africa (Pty) Ltd t/a ABSA Vehicle and Asset Finance v Groenewald (2167/22) [2023] ZANCHC 79 (27 October 2023). Available at: https://lawlibrary.org.za/akn/za-nc/judgment/zanchc/2023/79/eng@2023-10-27/source.pdf (Accessed: 18 October 2026). Cited in text as FFS Finance v Groenewald (2023).

Judge President of the Gauteng Division of the High Court (2025) Directive on mediation in the Gauteng Division, 22 April. Available at: https://www.judiciary.org.za/images/Directives/Directives_2025/DIRECTIVE%20ON%20MEDIATION%20IN%20THE%20GAUTENG%20DIVISION%20-%2022042025.pdf (Accessed: 18 October 2026).

Personal Injury Lawyers’ Association and Others v Judge President of the Gauteng Division of the High Court and Others (2025-0881450) [2026] ZAGPPHC 783 (23 July 2026). Available at: https://www.saflii.org/za/cases/ZAGPPHC/2026/783.html (Accessed: 18 October 2026). Cited in text as Personal Injury Lawyers’ Association v Judge President (2026).

Republic of South Africa (1965) Arbitration Act 42 of 1965. Consolidated text updated to 11 October 2024. Available at: https://www.saflii.org/za/legis/consol_act/aa1965137/index.html (Accessed: 18 October 2026).

Republic of South Africa (1996) Constitution of the Republic of South Africa, 1996, section 34. Available at: https://www.gov.za/documents/constitution/chapter-2-bill-rights (Accessed: 18 October 2026).

Republic of South Africa (2008) Consumer Protection Act 68 of 2008, section 70. Available at: https://www.acts.co.za/consumer-protection/70_alternative_dispute_resolution (Accessed: 18 October 2026).

South African Law Reform Commission (2025) Discussion Paper 168, Project 94: Alternative dispute resolution: a Mediation Act for South Africa. Call for comment opened 29 January 2025 and closed 30 April 2025. Available at: https://pmg.org.za/call-for-comment/1552/ (Accessed: 18 October 2026).

Sunday Times (2026) Judges’ immunity faces more scrutiny in challenge to Mlambo’s mediation directive, 11 September. Available at: https://www.sundaytimes.timeslive.co.za/news/2026-09-11-judges-immunity-faces-more-scrutiny-in-challenge-to-mlambos-mediation-directive/ (Accessed: 18 October 2026).