By early 2024, the trial date allocations in Gauteng were for late 2027 and early 2028. At the moment, our courts are clearly over-extended. This is obviously extremely detrimental to a creditor who is trying to recover monies due to him or her.
Due to this current situation, it is important that you are aware of an alternative method of dispute resolution which is recognized in our legal system and which you may consider in order to resolve disputes. I will focus in this article on mediation as a dispute resolution procedure.
MEDIATION IN THE HIGH COURT
Mediation is a dispute resolution process which is recognized in the Uniform Rules of Court (“the Rules”) and is defined as follows in Rule 41A(1):
“… a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute”
The legal system has recognized the need to ventilate disputes between the parties prior to proceeding with action or application procedure in court. As mentioned above, our courts are over-extended and so parties are encouraged to first seek to resolve any dispute through mediation.
Rule 41A requires an applicant or plaintiff to serve on each party to an action a notice which states whether they agree or oppose the referral of the matter to mediation. This notice is served along with the notice of motion or summons in the matter. It is important to note that this notice is without prejudice, and need not be filed with the Registrar of the court.
The respondent or defendant is required to serve a notice, not later than service of the answering affidavit or plea, which states whether the they agree or oppose the referral of the matter to mediation.
Should the parties agree to the referral of the matter, the process may be summarized as follows:
- The parties enter into an agreement to mediate;
- The parties deliver a joint signed minute which records their decision to refer the matter to mediation – the effect of their signatures is to suspend the time periods for the delivery of pleadings or affidavits between the parties; and
- The mediation process must be concluded within 30 days from the signature of the minutes referred to above.
The referral to mediation of a dispute between the parties does not mean that all issues which arise will no longer be heard by the court. Should any dispute not be resolved through mediation, the dispute in question may proceed in the normal course of litigation.
In the magistrates courts, the process of mediation is explained in Rules 72 – 79, which provides for a similar process as the one mentioned above.
THE BENEFITS OF MEDIATION
The obvious benefit of mediation is that the process is less expensive and much faster than proceeding with litigation. Another benefit of mediation is that the parties will probably obtain mutually satisfactory results – the aim is to find a ‘middle ground’ between the parties to resolve a dispute. This could ensure the preservation of any working relationship between the parties. The benefits of this process extend beyond the parties, as successful mediation also benefits the judicial system, if disputes which can be resolved, are disposed of outside of the courts.
WHAT IF THERE IS NO CO-OPERATION FROM THE DEFENDANT?
Mediation is a voluntary process and both parties must agree to participate in this process – you cannot force the other party to agree to the referral of a matter to mediation. In Growthpoint Properties Ltd v Africa Master Blockchain Company (Pty) Ltd [2022] ZAGPJHC 836, it was held that Rule 41A contains no sanction for non-compliance.
A debtor trying to avoid judgment may not want to agree to follow a speedier process and accordingly any delay of the matter works in his or her favour. Unfortunately, in such an instance, there is not much which can be done, as the courts are not yet prepared to force parties to mediate prior to litigation. Rule 41A 9(b) mentions one possible consequence for a party who unreasonably refuses the referral of the matter to mediation: costs of the action or application.
As a result, if a matter is not referred to mediation and the court finds that the costs incurred could have been avoided had the parties referred the matter to mediation, the court may choose not to award costs to the party which refused referral of the matter to mediation. This viewpoint can be inferred from the decision in Koetsioe and Others v Minister of Defence and Military Veterans [2021] ZAGPPHC 203 where Davis J made the following remark:
“In my view, it is clear that this matter could have (and still can) benefit from mediation. The blunt refusal by the applicants to even consider, let alone attempt it is, in the circumstances of the case, which include their own breach their undertaking, so disconcerting, that I shall reflect upon it when considering the issue of costs as this court is entitled to do in terms of Rule 41A(9)(b).” at [para 6.5]
What this indicates is that although the process is voluntary, the Rule requires that the parties seriously consider mediation prior to litigation, and that, after such consideration, each party is required to provide their reasons for acceptance or refusal of mediation. While there is no actual compulsion to mediate, you are required to consider the process. Parties should therefore exercise caution when choosing to litigate a matter which may be resolved, either in full or partly, through mediation.
CONCLUSION
While it is extremely frustrating to chase after a debtor who refuses to repay you, due to a dispute in respect of the amount owing or a specific issue relating to the agreement, the uphill battle to resolve the matter in court will take years. During this time, the increasing legal costs might result in you becoming demotivated and feeling that justice is not on your side. Mediation is therefore an extremely important tool to utilize prior to continuing with litigation, as it is a resolution which will benefit both parties, and the judicial system, should it be successful.
