No way out - Mediation is not optional in the Gauteng Division of the High Court

By Raynold Tlhavani, Partner and Maano Manavhela, Associate, Webber Wentzel

With effect from 22 April 2025, the Gauteng Division of the High Court has introduced mandatory mediation before civil trials. This requires parties to first undergo mediation before they can apply for a trial date.

In one of the first judgments dealing with mediation, the Gauteng High Court has reaffirmed the mandatory nature of court-annexed mediation in civil proceedings. In Brondani v Brondani (2021 52977) [2025] ZAGPJHC (17 November 2025), Judge Adams considered whether a litigant’s refusal to mediate, based on the perceived futility of the process and prior failed settlement attempts, constitutes valid grounds to avoid mediation under Uniform Rule 41A, read together with the Directive introducing Mandatory Mediation in the Gauteng Division and the Mediation Protocol.

The dispute arose from damages claim brought by the plaintiff, Roberto Brondani, alleging assault by the defendant, Mauro Brondani, in December 2019. The defendant counterclaimed, asserting that he was the victim of the assault. The plaintiff attempted to mediate and served the prescribed amplified mediation notice, which is required to commence the mediation process. However, the defendant refused to refer the matter to mediation. Against this backdrop, the plaintiff brought an interlocutory application to compel the defendant to comply with the mediation requirements.

The defendant opposed the application, arguing that mediation would prolong the already protracted litigation and increase costs, citing numerous failed settlements. The defendant's affidavit expressed strong resistance, describing mediation as a waste of time and adopting the position that the dispute between the parties could not be mediated.

The court rejected these arguments. Judge Adams held that subjective beliefs about the futility of mediation and extreme acrimony between parties do not constitute exceptional circumstances excusing compliance with the Mediation Protocol. To hold otherwise would undermine the purpose of court-annexed mediation, which aims to alleviate congestion on court rolls, promote access to justice, and foster cooperation among litigants.

While the court found that the defendant's response to the plaintiff's amplified mediation notice was not irregular as contemplated in the Mediation Protocol because it provided substantive reasons for the position adopted by the defendant, it nonetheless ruled that those reasons were insufficient to avoid mediation. The defendant was therefore ordered to co-operate in the appointment of a mediator and the furtherance of the mediation process in accordance with the Directive and Protocol. The defendant was also directed to deliver an amplified Rule 41A notice within ten days. Each party was directed to bear its own costs, with the court noting that the defendant acted bona fide (in good faith) and that litigants are still adapting to the new mediation framework.

The judgment highlights that mandatory mediation cannot be avoided merely because parties believe it will fail or have previously attempted settlement. Parties may only be excused from mediating their dispute in exceptional circumstances. Extreme acrimony and a belief that mediation would be a waste of time are not exceptional circumstances. Compliance with the Protocol requires active participation and meaningful good-faith engagement in the mediation processes.

We note that a recent amendment to the Mediation Protocol provides parties with a framework for dealing with matters in which the parties agree that a matter cannot be mediated due to the nature of the dispute. This requires the provision of a justifiable reason why a dispute is incapable of being mediated and the formulation of a joint minute recording this position as well as the formulation of a stated case for hearing on the opposed motion court roll. In the event of a dispute on whether a matter is incapable of being mediated, the decision of an Umpire contemplated in the Mediation Protocol would be final. Mediation is clearly here to stay.

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