The Revised Directive introducing Mandatory Mediation in the Gauteng Division became effective from 22 April 2025. The Directive only applies to civil trials. However, this does not prevent the court from ordering or encouraging parties to engage in mediation in a case which is not a trial.
Please note however, that Rule 41A also needs to be complied with when an application is brought.
The procedure applicable to the civil trial roll for all categories of litigation set down after 1 January 2027
All trial dates set down after 1 January 2027 are withdrawn. With effect from the date of this Directive, no trial date shall be allocated to a case unless the request for a date is accompanied by a report on the mediation as contemplated in the Protocol.
Cases against the Road Accident Fund (the RAF)
Distinct procedures are applicable to cases against the RAF.
Revision of the status of trial dates already allocated in cases other than the RAF in 2025-2026
All trial dates set down in 2025 remain intact.
All matters with trial dates allocated in 2026 shall provisionally remain on the roll, subject to a mediator’s report being presented to the Registrar 30 court days before the trial date.
If a mediator’s report is not presented, the case shall be struck from the roll, and a new trial date needs to be applied for.
General
Qualified mediators
Mediation services provided in terms of the Protocol must be by qualified mediators who comply with minimum requirements. Qualified mediators are accredited mediators who, in addition to the training accreditation assessment, have been specifically certified by a Recognised Mediation Organisation (RMO).
Mediation Protocol for the Gauteng Division
The Protocol applies to all civil trials (e.g., commercial, delictual, family, personal injury), including cases involving repeat defendants like the Road Accident Fund (RAF), applying equally in Pretoria and Johannesburg.
Previous mediations conducted before the Directive, if done by a qualified mediator, can be accepted as compliance, provided confirmation is obtained in the form of a Mediator’s Report.
Initiation of Court-Annexed Mediation
Initial Rule 41A Notice
All new litigation shall be initiated by a Notice in terms of Rule 41A Notice (Initial Rule 41A Notice).
Even though some attorneys initiate litigation with an amplified Rule 41A Notice, in our view, this is premature because you do not have nearly sufficient information at your disposal to meaningfully deal with the issues.
Amplified Rule 41A Notice
Even if Initial Rule 41A Notices have already been exchanged, new Amplified Rule 41A Notices must be filed when it is appropriate to do so.
The Amplified Notice will contain, inter alia, detailed information about mediator preferences, factual issues, expert evidence, and procedural proposals.
If the parties have not already complied with the Directive, an Initial Rule 41A Notice must be filed (and an Amplified Rule 41A Notice filed in due course).
The responding party’s response to the Plaintiff/Defendant’s Amplified Rule 41A Notice
Upon receipt of an Amplified Rule 41A Notice, the responding party must file a responding Amplified Rule 41A Notice.
Irregular Notices and Delinquent Parties
A party who files a notice, either by its own volition or in response to the receipt of a Rule 41A Notice, which simply rejects the referral of the matter to mediation without cogent reasons, is inadequate and constitutes an irregular notice.
A party who fails to reply to a Rule 41A Notice timeously, or at all, or unreasonably fails to cooperate in the appointment of a mediator or the furtherance of the mediation process is classified as a delinquent party (“the delinquent party”).
A party who receives an irregular notice is entitled to proceed in accordance with Rule 30A. We attach a draft Rule 30A Notice for your consideration. If the delinquent party does not respond adequately, or at all, within the 10 days, then application may be made, on notice to the Special Interlocutory Court for a compelling order as per the attached draft.
Should the delinquent party fail to comply with the compelling order, the aggrieved party shall be entitled to enrol the matter for hearing on the Default Judgment roll and can seek an order:
- declaring the delinquent party in contempt of the compelling order; and
- for the striking out of the claim and/or defence; and
- for substantial relief on the merits.
If a party fails to attend a mediation session or does not cancel a scheduled mediation session, such party shall similarly be considered a delinquent party.
Enforcement Mechanisms
Non-compliance triggers penalties, including adverse cost orders and disciplinary action against legal practitioners who obstruct mediation.
Mediator Selection and Allocation Procedures
Once a mediator has been appointed, either by agreement between the parties or by the Umpire, the parties shall by no later than 5 (five) court days from the mediator’s acceptance of his/her appointment as such, proceed to conclude the first joint minute and enter into an Agreement to Mediate in accordance with Rules 41A(4)(a) and (b) respectively.
The consequence of this initial step (in terms of Rule 41A(4)(c)), is the suspension of time constraints for pleadings, notices, and affidavits from the date of signature of the joint minute until mediation concludes. However, any party suspecting abuse of this suspension may petition the court to uplift the suspension.
Mediator’s Report
As previously set out, a trial date cannot be applied for without a mediator’s report. Within ten court days after mediation, the mediator must prepare and sign a report certifying the mediation outcome and jointly prepare another minute with the parties in accordance with the provisions of Rule 41A(a)(8)(b).
The joint minute sets out issues agreed upon and those for trial, and is available to the court, but the full mediator’s report remains confidential except for cost considerations post-trial.
