South Africa’s civil justice system faces significant challenges, including escalating litigation costs, prolonged delays, and an overwhelming backlog of cases, with some civil trial dates not projected until 2031. Against this background, the South African Law Reform Commission (SALRC) has been developing a Draft Mediation Bill since 2019 to integrate alternative dispute resolution (ADR), particularly mediation, into the mainstream justice system. 

The bill aims to establish a credible legal and institutional framework for mediation, making it accessible, cost-effective, and professionally regulated. Although mediation remains voluntary in principle, the bill empowers courts to encourage and, in certain disputes, require mediation before litigation may proceed. This raises concerns regarding the scope and limits of court-directed mediation and its compatibility with section 34 of the Constitution, which guarantees the right to access courts.

Current Framework: Rule 41A and the Gauteng Directive
South Africa’s Uniform Rule 41A for High Court civil procedure requires parties to formally consider mediation at the outset of a civil action. Rule 41A stops short of forcing parties to mediate, only forcing them to consider and state a position on mediation. 

The Gauteng Division of the High Court’s directive of 22 April 2025 goes further: it mandates mediation for all civil trial matters in the Gauteng division, requiring parties to first undergo mediation before they can apply for a trial date, with enforcement mechanisms that include cost sanctions and forfeiture of trial dates for non-compliance. 

The overarching rationale for the directive is to provide an effective and expeditious litigation platform that guarantees access to justice. 

Judicial Endorsement: Brondani v Brondani
In Brondani v Brondani (2021/52977) [2025] ZAGPJHC (17 November 2025), the court confirmed that neither severe acrimony between the parties nor a party’s subjective belief that mediation would be futile constitutes a legitimate basis to refuse a referral to mediation. To hold otherwise would defeat the purpose and aim of court-annexed mediation.

Legislative Comparisons: Mandatory Mediation in Other Areas of Law
Labour Relations Act
Mandatory mediation is not unprecedented in South African law. In labour disputes, the Labour Relations Act 66 of 1995 requires conciliation or mediation before arbitration or adjudication. Importantly, this mechanism has not been held to infringe section 34 because parties are not compelled to reach a settlement: conciliation is an obligatory step in the process, not a barrier to adjudication. 

Land Reform and ESTA
Mandatory mediation has also been entrenched in the land-reform context. The Land Court Act 6 of 2023, read with the 2018 amendments to the Extension of Security of Tenure Act (ESTA), makes mediation a compulsory first step before eviction proceedings. 

In Marais NO and Another v Daniels and Others [2025] ZALCC 38 (30 September 2025), the court confirmed that under sections 10(1)(e) and 11(2)(b) of ESTA, mediation is mandatory and not satisfied by mere “good faith negotiations” or informal engagements. Although this limits immediate access to court, the judges held that the limitation is reasonable and justifiable, as mediation is intended to be efficient and does not extinguish the right to litigate if it fails. 

This reasoning demonstrates how compulsory mediation can coexist with section 34 when the limitation is narrow, purpose-driven, and procedurally safeguarded.

Constitutional Considerations: Access to Courts
The constitutional tension arises when court-directed mediation risks becoming coercive. Section 34 requires that courts remain accessible, particularly to vulnerable litigants, and compulsory mediation may burden parties facing power imbalances or those whose disputes involve public-interest principles requiring legal precedent. Confidential settlements also do not contribute to the development of the law. 

However, these concerns are mitigated when mandatory mediation is applied flexibly, with judicial discretion to exempt inappropriate matters and without forcing parties to settle. In this configuration, mandatory mediation strengthens rather than obstructs access to justice by providing a faster, more affordable, and less adversarial pathway to resolution.

Conclusion: Mediation as a Complement to Adjudication
The emerging legal framework, therefore, reflects not a replacement of adjudication but a recalibration of the litigation process. When supported by safeguards, professional mediators, cost protections, exemptions in unsuitable matters, and unfettered access to trial if mediation fails, mandatory mediation becomes a constitutionally justifiable mechanism for fulfilling the promise of section 34. It improves access to justice in substance, rather than merely in form, by enabling timely, fair, and dignified dispute resolution.

Reference List:
• Brondani v Brondani (2021 52977) [2025] ZAGPJHC (17 November 2025)
• Draft Mediation Bill
• Uniform Rule 41A
• The Gauteng Division of the High Court’s directive of 22 April 2025
• No way out: Mediation is not optional in the Gauteng Division of the High Court | Webber Wentzel
• The Labour Relations Act 66 of 1995
• Section 34 of the Constitution
• The Land Court Act 6 of 2023
• 2018 amendments to the Extension of Security of Tenure Act (ESTA)
• Marais NO and Another v Daniels and Others [2025] ZALCC 38 (30 September 2025)
• L Greyvenstein, “Proposed Mediation Legislation” (2025)
• Conflict Dynamics, “The Mediation Bill” (30 September 2025)
• J Ripley-Evans, “South Africa’s move towards mandatory mediation” (12 June 2025)
• S Vettori, “Mandatory mediation: An obstacle to access to justice” (2015)
• M Carels, “From courtroom to conference table: The rise of compulsory mediation” (2025)
• T Broughton, “Landowners must go through mediation before applying for an eviction” GroundUp (3 October 2025)


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