In 1984, the Department of Justice introduced the small claims court as well as legislation enabling “Mediation in Certain Civil Cases.” Due to long delays in prosecution and overcrowded dockets, this legislation was introduced to provide faster resolution of minor civil cases that fell within the magistrate courts’ jurisdiction. This was understood as an innovation to enable broader access to justice, particularly for the more destitute members of the community. The legislation stipulated that mediators needed to be qualified and practicing lawyers. However, this requirement became an obstacle because there were few trained mediators who were also practicing lawyers, and the legislation was ultimately not successful.
In 1987, the Department of Justice introduced the “Mediation in Certain Divorce Matters Act.” The main objective of the act was to appoint a family advocate to mediate between parents in order to promote and protect the interests of children during and post-divorce. The family advocate also served to assist the spouses in separating spousal problems from parental responsibilities. This act is still in place but is currently under review.
In 1988, the South Africa Association of Mediators (SAAM) was formed. SAAM’s main objective is to train family mediators and partner with the Government to promote non-adversarial dispute resolution of family law matters.
Court-annexed mediation pilot project
While South African courts have a history of support for mediation as a form of dispute resolution, recent developments have introduced important systemic changes as mediation has been further adopted in the region. In 2014, the Magistrate Court Rules were amended to introduce Court Annexed Mediation in selected magistrates’ courts, a change that expanded to other provinces in 2019. In 2015, the Minister of Justice introduced a court-annexed mediation pilot project in the magistrate courts to promote the efficient resolution of disputes prior to filing with the court and as part of the court processes. Subsequently, the Ministry of Justice invited trained and experienced mediators to apply for court accreditation.
In 2017 and 2019, The South African Law Reform Commission invited stakeholders, to provide input regarding the envisioned introduction of an Alternative Dispute Resolution system. The system would include the accreditation of mediators, the entity that should be responsible for regulating mediators’ professional conduct, and the introduction of mandatory mediation.
In 2020, Rule 41A was incorporated into the Uniform Rules of the High Court. This requires plaintiffs to consider mediation as a potential option for resolving the dispute. If parties choose not to move forward with the mediation, they must provide reasons for this decision.
By Pat Mkhize, Senior Fellow-South Africa, Weinstein International Foundation