Directive by Judge President to strike Unmediated Cases from High Court roll (Rule 41A compliance)

Mediation Academy
Jul 26, 2021
2 min read

Updated: Jun 13

Directive by Judge President Makgoba on Rule 41A of the Uniform Rules of Court

Please view the directive by Judge President Makgoba on the image above (click to zoom in):

On 20 July 2021, Judge President Makgoba issued a directive enforcing the implementation of Rule 41A of the Uniform Rules of Court, which requires legal practitioners to attempt mediation in South Africa before bringing any action or motion before the High Court. This directive aims to promote mediation in family law and civil disputes, easing pressure on congested court rolls and helping reduce backlogs through mediated settlements.

Although Rule 41A had already been in effect for over a year, this new directive gave legal practitioners just over a month to ensure full compliance. From 1 September 2021, no High Court in South Africa will hear any case where mediation has not been properly attempted under Rule 41A. Matters that do not comply will be struck from the roll, reinforcing the growing role of mediation in South Africa’s legal system.

Legal professionals who fail to comply face serious consequences. As highlighted in Acting Judge Brassey's ruling in Brownlee v Brownlee, penalties for non-compliant legal practitioners are becoming a very real possibility. This ruling underscores the importance of incorporating mediation and alternative dispute resolution (ADR) practices into legal proceedings in South Africa.

Based on Acting Judge Brassey’s ruling in Brownlee v Brownlee [video] [original judgment], legal practitioners who fail to comply with Rule 41A mediation requirements in South Africa may face financial penalties and cost orders for non-compliance.

Frequently Asked Questions (FAQ)

What is Rule 41A of the Uniform Rules of Court?

Rule 41A requires that all civil matters brought before South African High Courts include an attempt at mediation before proceeding to trial. This aims to promote settlement and reduce court backlogs.

When did Rule 41A mediation become compulsory?

While Rule 41A came into effect in 2020, Judge President Makgoba issued a directive on 20 July 2021, giving legal practitioners until 1 September 2021 to fully comply.

What happens if parties fail to attempt mediation?

If mediation has not been attempted as required, the High Court may strike the matter from the roll, meaning the case will not proceed until compliance is achieved.

Are there penalties for non-compliance?

Yes. Based on the ruling in Brownlee v Brownlee, legal practitioners who fail to comply with Rule 41A may face financial penalties or cost orders.

Why is mediation important in South Africa's legal system?

Mediation helps resolve disputes faster, reduces legal costs, clears congested court rolls, and encourages amicable settlements without lengthy litigation.