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IMPLEMENTING MEDIATION IN THE FORMAL LEGAL SYSTEM - A SOUTH AFRICAN PERSPECTIVE Deriving lessons to improve the introduction of

meditation within a formal legal system from a

comparative analysis of compulsory Labour Mediation

and voluntary (Civil) Court- annexed Mediation in

South Africa

Ebrahim Patelia

www.mediateworks.com

INTERNATIONAL MEDIATION SYMPOSIUM

ISTANBUL, TURKEY, 29 APRIL 2016

http://www.mediateworks.com/

© Mediateworks (PTY) Ltd

The peace symbol and logo of Mediateworks used in this paper are registered trademarks.

Table of Contents

IMPLEMENTING MEDIATION IN THE FORMAL LEGAL SYSTEM - A SOUTH AFRICAN PERSPECTIVE

Deriving lessons to improve the introduction of meditation within a formal legal system from

a comparative analysis of compulsory Labour Mediation and voluntary (Civil) Court- annexed

Mediation in South Africa

Introduction ......................................................................................................................................................... 1

An overview of South Africa ................................................................................................................................. 3

The Legacy of Reconciliation ................................................................................................................................ 5

The Challenges in respect of Access to Justice ..................................................................................................... 8

Mediation in South African Legislation .............................................................................................................. 10

Mediation in Employment Law .......................................................................................................................... 10

The dispute resolution structure in rights disputes is illustrated in the figure below: ...................................... 11

Court Annexed mediation (CAM) ....................................................................................................................... 17

The lessons we can take when introducing mediation in the formal legal system............................................ 21

IMPLEMENTING MEDIATION IN THE FORMAL LEGAL

SYSTEM - A SOUTH AFRICAN PERSPECTIVE 1

IMPLEMENTING MEDIATION IN THE FORMAL

LEGAL SYSTEM - A SOUTH AFRICAN

PERSPECTIVE

Deriving lessons to improve the introduction of meditation within a formal legal

system from a comparative analysis of compulsory Labour Mediation and

voluntary (Civil) Court- annexed Mediation in South Africa

Introduction

The formal legal system has been entrenched in South Africa due to

the development of imported laws and processes from the colonial

masters of a time long gone by1. It is the failure of this formal legal

system, globally and locally; to address the needs for an accessible

justice system which, requires policy makers to define a new

approach. Developing countries such as South Africa have unique

socio-economic, political and historical challenges, which are

dissimilar to developed countries.

Developed countries recently serve mediation, amongst other interventions, as a magic panacea

to cure the ills of the formal legal system. These suggestions have found favour due to its

traditional and historical roots in South Africa, in addition to its progressive and practical benefits.

South African policy makes have thus accepted mediation as a tool to enhance its formal legal

1 South Africa’s legal system is based on English and Roman Dutch Law. See Introduction to the Law of South Africa by C.G Van Der Merwe and J.E. Du Plessis at page 1 - Kluwer Law International (2004)

Mediation – a cure for access to

justice and peace

IMPLEMENTING MEDIATION IN THE FORMAL LEGAL SYSTEM - A

SOUTH AFRICAN PERSPECTIVE

2

system. However, the acceptance of mediation within the formalised legal system has been slow

especially in civil law.2

The challenges to the success of mediation within the formalised legal system in South Africa I

submit include, but are not limited to factors such as; the research in its development is minimal

and the system is often imported wholesale from other developed legal systems, its curative

value is overstated and as such in implementation cannot live up to the expectations, the

production of mediators through varied and inconsistent training results in variations in the

quality of mediators, the introduction of a variety of mediation systems and definitions within a

legal system creates confusion and a wastage of resources, the quality of mediators and the

mediation process is varied and its benefits are not accurately measured, the dispensation of

mediation in the formal legal system is not always understood and can be misplaced and as such

results in a failure of justice, the users of mediation (administrators, judges, lawyers, clients, the

public, the media etc) are often ignorant on the process and use of mediation and thus are unable

to support the system, the dispensers of mediation (mediators) are left unmonitored and as such

may serve to do more harm then good especially in matters that involve unrepresented lay

people, the mediation profession is fractured and struggle to work together and as such creates

a disunited front. I will deal with these factors in my analysis of the mediation systems below.

At a high level I seek in this paper to provide an analysis of formalising mediation within the legal

system in South Africa; by comparing the entrenched compulsory mediation system in

employment law3 with the recently introduced pilot voluntary mediation system in civil matters

(court-annexed mediation)4.

2 I accept that if used effectively; mediation has many such as efficiency, cost savings, self-determination, acceptance of outcomes, access, high settlement rates etc. 3 Labour Relations Act 66 of 1995 (as amended) and referred to below as the LRA. 4 Section 70 of Rules Regulating the Conduct of Proceedings of the Magistrates' Courts of South Africa published under Government Notice No. R 740 of 23 August 2010, as amended. In particular the amendment of March 2014 introducing as a pilot project, the court-annexed mediation rules to certain Magistrates Courts. Referred to below as the Court- annexed mediation rules.



3

More specifically I will deal with the historical and current contextual realities within South Africa,

the legacy of mediation in South Africa’s political transformation, the recognition of mediation

within the formalised legal system, the challenges in respect of access to justice and the need for

reform of the civil law system, an overview of the employment dispute resolution processes and

the court-annexed mediation processes, some statistical data available from both the

compulsory employment mediation and voluntary court-annexed mediation systems, the

challenges in respect of both systems, the successes of both systems and finally I present key

lessons from the South African example to improve the introduction of mediation in formalised

systems.

An overview of South Africa

South Africa is made up of a population of approximately 54 million people.5 Today, South Africa

is the powerhouse of Africa, the most advanced, broad-based economy on the continent, with

infrastructure to match any first-world country.6

About two-thirds of Africa's electricity is generated here. Around 40% percent of the continent's

phones are here. Over half the world's platinum and 10% of its gold is mined here. There are 11

officially recognised languages, most of them indigenous to South Africa. Just fewer than 40% of

the population speak either isiZulu or isiXhosa. The country straddles 1.2-million square

kilometres, as big as several European countries put together. The major centres are connected

by more than 16 000 kilometres of tarred and regularly maintained national roads, including

thousands of kilometres of dual carriageway.7

However, twenty years after South Africa’s transition to democracy, inequality continues to be a

major concern in the country, with stark contrasts between the haves and have nots. Troublingly,

despite policy reforms aimed at reducing inequality, South Africa still has a two-tiered economy,

5 Statistics South Africa, Statistical release P0302, at page 2 6 southafricafrica.info “The Quick Guide to South Africa” 12 November 2012 7 Ibid



4

and lacks the “stepladder” positions that allow for the growth of the middle class. According to

some experts, 60%-65% of South Africa’s wealth is concentrated in the hands of just 10% of the

population (compared to 50%-55% in Brazil, and 40%-45% in the US).8 Within the top 1%-5%,

80% will be up of white people.9

A study in Canada and the United States revealed a correlation between inequality and

violence10. The study showed that income inequality, but not median income levels, relate to

homicide rates. In other words, it is not the level of wealth, but the distribution of wealth, that

influences murder and manslaughter. This trend is evident when one analyses the crime statistics

of South Africa.

South African Crime Statistics For 201511

8 Transcript of economist Professor Thomas Piketty's address to the 13th Nelson Mandela Annual Lecture found at - https://www.nelsonmandela.org/news/entry/transcript-of-nelson-mandela-annual-lecture-2015 9 Ibid 10 Daly, Martin; Wilson, Margo and Vasdev, Shawn. (2001) “Income Inequality and Homicide Rates in Canada and the United States" Canadian Journal of Criminology 43: pp.219-36 11 http://www.saps.gov.za/resource_centre/publications/statistics/crimestats/2015/crime_stats.php

40

41

42

43

44

45

46

47

48

49

50

Average Number of Murders Reported Per Day in RSA

2011/2012 2012/2013 2013/2014 2014/2015

https://www.nelsonmandela.org/news/entry/transcript-of-nelson-mandela-annual-lecture-2015

http://www.saps.gov.za/resource_centre/publications/statistics/crimestats/2015/crime_stats.php



5

This marked an increase for a third consecutive year after the murder rate more than halved over

the first 18 years of post-apartheid democracy. South Africa also scores high when we compare

its murder rates with other countries.

Ten Countries with the highest murder rates12

The Legacy of Reconciliation

The story of the “New South Africa” was born out of the historical negotiations and subsequent

miraculous constitutional agreement between the apartheid ruling National Party of the time

and the revolutionary movement, the African National Congress (ANC) at the time. At its most

simplistic the miracle of the “New South Africa” lies in the relatively peaceful transition which it

is argued is largely based on the humility in reconciliation shown by late President Nelson

Mandela and the realization by the then apartheid president FW De Klerk that the economy was

failing due to the progress made in the international isolation of South Africa time.

12 http://datablog.co.za/2015/10/south-africas-murder-statistics-in-seven-charts/

91

53

4541 39

34 33 30 30 29

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40

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60

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South Africa is ranked 8th out of 167 countries

http://datablog.co.za/2015/10/south-africas-murder-statistics-in-seven-charts/



6

The National Peace Accord, which helped deliver a democratic South Africa Peacefully, also

played an important role in re-establishing the African tradition of consensual dispute resolution

in communities in South Africa13 at the same time that negotiations for political transition were

taking place.

The negotiations between the stakeholders at what was known as Codesa, were by no means

easy and were marred by violence, walkouts and stale mates. The chief negotiators of the ANC

and the National Party interviewed by Roger Fisher14, reflected that the eventual success of the

negotiations was as a consequence of applying the problem solving approach to negotiation and

by building working relationships, establishing and maintaining communication even when there

was deadlock, exploring interests, investing options and the use of standards.

President Nelson Mandela’s approach to the negotiations, can be summed up in his own words;

“negotiated solutions can be found even to conflicts that come to seem intractable and such

solutions emerge when those who have been divided reach out to find common ground.”

To deal with the historical violations of personal rights, a Truth and Reconciliation Commission

(TRC) was established under the leadership of the Archbishop Desmond Tutu. In one study15, the

effectiveness of the TRC Commission was measured on a variety of levels:

Its usefulness in terms of confirming what had happened during the apartheid regime

("bringing out the truth")

The feelings of reconciliation that could be linked to the Commission

The positive effects (both domestically and internationally) that the Commission brought

about (i.e. in the political and the economic environment of South Africa).

13 Watching the Wind by Collin Marks page15-37 14 Harvard Program on negotiations, video interview 1994, Case studies on applying the Five Skills for getting to Yes. 15 Vora, Jay A. and Erika Vora. 2004. "The Effectiveness of South Africa's Truth and Reconciliation Commission: Perceptions of Xhosa, Afrikaner, and English South Africans." Journal of Black Studies 34.3: 301-322



7

In the study, the opinions of three ethnic groups were measured: the British, Africans, the

Afrikaners, and the Xhosa. According to the researchers, all of the participants perceived the TRC

to be effective in bringing out the truth, but to varying degrees, depending on the group in

question. There have been recent critiques on the effectiveness of the TRC and the political

negotiations at Codesa as having been ineffective in dealing with the transgressions and

inequalities created under the apartheid government. The varying views, I believe will continue

to create much debate. There however can be no doubt that at the least it assisted in a relatively

peaceful transition.

The spirit of mediation and its resultant potential to aid reconciliation has found its way in various

decisions of our Constitutional Court. Former Constitutional Judge Albie Sachs stated the

following:

“Not only can mediation reduce the expenses of litigation, it can help avoid the exacerbation of

tensions that forensic combat produces. By bringing the parties together, narrowing the areas of

dispute between them and facilitating mutual give-and-take, mediators can find ways round

sticking points in a manner that the adversarial judicial process might not be able to do.”16

Amongst several decisions of the Constitutional Court, which echoed the benefits of mediation

the Constitutional Court in the matter of Port Elizabeth Municipality v, Various Occupiers17

stated; “One of the relevant circumstances in deciding whether an eviction order would be just

and equitable would be whether mediation has been tried. In appropriate circumstances, the

courts themselves order that mediation be tried.”

In recent times the South African jurisprudence took another step forward in the divorce

proceedings MB v NB18, Brassey AJ stated:

16 “The Strange Alchemy of Life and Law” by Albie Sachs Oxford University Press (2009) at Page 108 17 2005 (1) SA 217 (CC) at [45] 18 2010 (3) 220 SGHC



8

“On the facts before me it is impossible to know whether the parties knew about the benefits of

mediation, but I can see no reason why they would have turned their backs on the process,

especially if they had been counselled on the matter by the attorneys. What is clear, however, is

that the attorneys did not provide this counsel; in fact, in the course of the pre-trial conference

they positively rejected the use of the process. For this they are to blame and they must, I believe,

shoulder the responsibility that comes from failing properly to serve the interests of their clients.”

I will deal with the legislative support for mediation below. It would thus seem that South Africa

has a fertile environment for introducing mediation to the formal legal system. However the

challenges to access justice remain.

The Challenges in respect of Access to Justice

The South African Constitution has a clear right to access to justice. Section 34 of the

Constitution19 states:

“Everyone has the right to have any dispute that can be resolved by the application of law decided

in a fair public hearing before a court or, where appropriate, another independent and impartial

tribunal or forum.”20

The effect of this right was put into scrutiny at the Access to Justice Conference held in July 2011,

under the leadership of the Chief Justice, towards achieving delivery of accessible and quality

justice for all. The Chief Justice opined “The key problems affecting our justice system include

delays in the system, its accessibility, inadequate court facilities, including courtrooms and library

facilities. In addition, our justice system has not taken full advantage of the developments in

information technology in order to improve the efficiency of our courts.

19 Section 34 of the Constitution of the Republic of South Africa, 1996 20 ibid



9

In many ways our courts are not functioning as efficiently and effectively as we would wish and

this has an adverse impact on the delivery of justice, particularly in respect of the poor and

vulnerable in our society.

Unless urgent attention is given to these issues, the confidence in the justice system may very well

be undermined. The primary challenge facing the judiciary is to re-examine the fundamentals of

the justice system. “21

The conference resolved that steps be taken to introduce alternative dispute resolution

mechanisms, preferably court-annexed mediation or the Commission for Conciliation, Mediation

and Arbitration22 kind of alternative dispute resolution into the court system23.

In addition this conference made the following recommendations24:

Judicial independence and sustaining the confidence of the public in the judiciary;

Enhancing court efficiency, including judicial case management and performance

measurement;

The use of information technology to enhance the efficiency of courts;

Alternative dispute resolution mechanisms, including court based mediation and

restorative justice;

Court administration;

The role of the media in making justice accessible; and

Judicial education.

This was a significant step to the formalization of the current court annexed mediation rules.

21 Office of the Chief Justice Media Statement: Access to Justice Conference held on 1 July 2011- at page 1 22 The Commission for Conciliation mediation and Arbitration (CCMA) is a body established in terms of section 112 of the LRA to resolve labour disputes through Conciliation and Arbitration 23 Section 70 of Rules Regulating the Conduct of Proceedings of the Magistrates' Courts of South Africa published under Government Notice No. R 740 of 23 August 2010, as amended. In particular the amendment of March 2014 introducing as a pilot project, the court-annexed mediation rules to certain Magistrates Courts. 24Office of the Chief Justice Media Statement: Access to Justice Conference held on 1 July 2011- at –at page 2



10

Mediation in South African Legislation

There are approximately 50 pieces of legislation in South Africa, which deal with mediation as a

dispute resolution process25. In addition various ombudsmen are being established that include

mediation as a component of dispute resolution offerings.26

In Employment law mediation is institutionalized as normal and necessary process step since

1996. In respect of Family Law, mediation plays a significant role and is somewhat

institutionalized in terms of the Children’s Act. Lastly the introduction of the formalized court-

annexed mediation in certain Magistrate’s courts as a pilot project provides a more general

application of mediation in civil disputes.

Mediation in Employment Law

Overview of the Labour Dispute Resolution System

In South Africa the formalisation of mediation and arbitration in the employment arena is

probably attributable to the establishment of the Independent Mediation Service of South Africa

(IMSSA) in 1984. This body was established by a group of trade unionists, employers, academics

and lawyers who wanted a credible dispute resolution organisation to offer services directed at

mediation and arbitration of employment disputes in South Africa 27 . At the time statutory

institutions of apartheid lacked credibility and effectiveness and IMSSA was formed as a

substitute for those institutions.

The Labour Relations Act 66 of 1995 (LRA), introduced conciliation as a process step that must be

complied with in nearly all Labour disputes. The LRA also created the Commission for Conciliation

Mediation and Arbitration (CCMA) a government funded institution, which provides the

conciliation, and arbitration dispute resolution services required by the LRA. The LRA in addition

25 Commercial Mediation- A users guide by John Brand, Felicity Steadman and Christopher Todd. Juta 2014- page 92-98

26 An example of this is the Community Scheme Ombud Service - http://www.csos.org.za/disputeresprocess.html 27 Commercial Mediation- A users guide by John Brand, Felicity Steadman and Christopher Todd. Juta 2014 at page 2

http://www.csos.org.za/disputeresprocess.html



11

also created a high court structure specializing in labour disputes in the form of a Labour court

and Labour appeal court.

The LRA in general defines unique dispute resolution processes for rights disputes and mutual

interest disputes. Mutual interest disputes would include issues such as wage increases and are

dealt with generally through negotiation internally, mediation externally and if the dispute

persists then the parties will resort to a power play through the use of strikes and lock outs until

the parties are able to reach a negotiated agreement. Rights disputes, include matters such as

termination and unfair labour practice matters, which are dealt with through a formal process

internally, conciliation externally and if the dispute persists the matter LRA would define which

matters would be dealt with through Arbitration or the Labour Court. Decisions of the arbitrator

and actions by the CCMA are subject to review by the Labour Court.

Dispute resolution structure – Rights disputes

The dispute resolution structure in rights disputes is illustrated in the figure below:

INTERNAL DISPUTE RESOLUTION

EXTERNAL DISPUTE RESOLUTION

Disciplinary and Grievance Procedure

These processes must be procedurally and substantively fair

If no resolution of the dispute internally to the satisfaction of the parties

Step One:

Conciliation CCMA, Bargaining Council or Private

Mediation, fact Finding or Advisory Arbitration No legal representation allowed Certificate is issued

If no settlement at conciliation move to step two



12

Dispute Resolution structure Mutual Interest Matters

The dispute resolution structure in mutual interest disputes (an attempt to create fresh rights) is

illustrated in the figure below:

INTERNAL DISPUTE RESOLUTION

Step One:

Conciliation CCMA, Bargaining Council or Private

Mediation, fact Finding or Advisory Arbitration No legal representation allowed Certificate is issued

If no settlement at conciliation move to step two

Collective Bargaining

At the workplace, or within a workplace bargaining structure or within a centralized bargaining council for an

area or sector

If no resolution of the dispute internally to the satisfaction of the parties

Step two:

Should the matter be referred to Arbitration or Labour Court adjudication?

Arbitration CCMA, Bargaining Council or Private

By operation of law or by agreement

Attorneys have limited rights to represent. Arbitration Awards are final and binding. Must be made an order of court by the CCMA director or the Labour Court to enforce. Subject to Review only at the Labour Court.

Adjudication Labour Court

By operation of law.

Equal jurisdiction as the High Court Judgment has the Status of a Court order

Subject to Review and Appeal at the Labour Court of Appeal. Attorneys may appear at the Labour Courts



13

EXTERNAL DISPUTE RESOLUTION

The LRA defines conciliation as a process, which includes mediation, fact finding, and advisory

arbitration processes28. Thus a commissioner of the CCMA is able to use any one of the processes

when conciliating a matter. Of all the three processes mediation is the most used process. The

LRA requires a conciliation to take place within 30 days of referral of the dispute to the CCMA. If

the days are not met or the party/ies fail to attend the conciliation process, the matter will be

referred to the net step of dispute resolution. Interestingly this has not resulted in a reduction in

the referrals and the settlement rate.

Due to the volume of disputes that are referred to the CCMA, the mediation process in the

majority of disputes involves a one-hour, mediation process that is more focused on the legal

risks, the economic benefits of earlier settlement and the time for final resolution.

There is a move to move away from this approach as it producers a purely risk and pressure

orientated approach to mediation. “Mediation First” has thus for a number of years been the

focus of the CCMA, specialised mediation units have been established to deal with matters

28 Section 135 of the Labour Relations Act 66 of 1995

Step Two:

Power Play

The Right to strike and the Right to Lock Out

48 hours’ notice is required The strength and endurance of the parties will determine the outcome. No right to adjudication unless to obtain an interdict or to discipline employees



14

through a world class mediation process and advanced training methodologies and programs

have been established.

The CCMA has developed a comprehensive training program for its commissioners, which has

been recently outsourced to some Universities and is the equivalent of an NQF Level 8 Post

graduate certificate. The certificate program is a combination of two substantive law modules

and two practical modules (Mediator and arbitrator skills).

Measures have been put into place to coach, mentor and monitor commissioners. These

measures require constant enhancement. In addition commissioners are monitored to ensure

their conduct does not undermine the principles of social justice.

In addition a focus has been placed on dispute prevention instead of dispute resolution. Thus a

number of initiatives are offered to capacitate, diagnose build and monitor internal dispute

resolution systems and processes. The approach of helping people fix their own fights is a

cornerstone of the positive results obtained by the CCMA.

A huge emphasis is being placed on training and capacitating users of the CCMA in modules such

as effective negotiation, legal training and a number of additional modules. This requires

constant development as the landscape is constantly changing due to the socio-economic and

political factors.

Generally the CCMA has been a successful model for a mass dispute resolution system and has

produced the following results. All the results were extracted from the CCMA 2014/15 Annual

Report.29

29 http://www.ccma.org.za/UploadedMedia/CCMA%20ANNUAL%20REPORT%202015.pdf

http://www.ccma.org.za/UploadedMedia/CCMA%20ANNUAL%20REPORT%202015.pdf



15

The CCMA offers its services free of charge as it obtains its funding from the government budget.

It has a national presence and spends extensive resources to make people understand who the

CCMA is, its powers and to obtain their dispute referrals even in the most remote areas where

CCMA staff goes out to visit the employees and employers. This results in a very accessible but

an especially high volume of disputes referred to the CCMA as can be seen from the figure below.

The quicker the CCMA finalises a matter the more efficient it can become.

140366153657 154279

161588168434 170673

0

20000

40000

60000

80000

100000

120000

140000

160000

180000

200000

2008-2009 2009-2010 2010-2011 2011-2012 2012-2013 2013-2014

Nu

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Year

The CCMA caseload has increased by 22% over the last 6 years

62%

66%67%

70%71%

56%

58%

60%

62%

64%

66%

68%

70%

72%

74%

2011 2012 2013 2014 2015

Conciliation Settlement Rate



16

Challenges in the South Africa Labour Environment

In general the CCMA’s accessibility, reaching out to the most vulnerable employees and success

in attracting referrals is a model for access to justice. The strain to the economy increases

retrenchments and dismissals which increases the number of referrals to the CCMA. However

this success requires demanding budgets, which creates a strain on the government budget.

The problem is compounded by legal challenges to the self-funded Collective Bargaining

structures such as bargaining councils on the basis that it deprives minority players from defining

their own conditions of employment that are more affordable and sustainable.

In addition trade unions have recently been reorganising themselves due to differences in policies

and political ideologies. There has been a historical alliance with the ruling party, ANC, and this

is showing signs of weakness.

The alliance between the state and some of the biggest trade unions affiliated under the Cosatu

federation has resulted in creating an imbalance in the bargaining arrangements and regulatory

arrangements.

Generally the labour environment in South Africa has defined significant change. As such the

demands placed at the bargaining table often reflect the dissatisfaction of the masses with

government policy. The majority of the people in the lower economy, rural population, informal

economy and the unemployed have struggled to position their frustrations at the ballot box.

These frustrations have been rather carried as demands at the negating table.

Trade unions have lost skilled people to government and business. This has weakened the

intellectual strength within trade unions. As such a greater radicalisation has taken root in some

trade unions with very little sense in negotiation strategy or skill.

Strikes in South Africa have in some sectors increased in intensity and has often resulted in

violence. The Platinum strike of 2012 at the Lonmin Mine has to a large extent redefined the



17

labour dispute resolution environment. The police using live ammunition and killing close to 44

striking miners defined the strike. It reflected the deep connection between capital and the state.

It also reflected the desperation of the poor and the growth of capitals depletion of economic

and structural resources locally to the benefit of multinational companies. It also reflected the

ease at which violence could be used, despite good laws, to resolve conflict30. Of great concern

is that at times the conduct of unions and employers are in direct conflict of the law and court

orders.

Nedlac is a multiparty structure established to negotiate policy and legislative reform between

trade unions, business, government and community organisations. I submit that the lack of

efficiency of this structure in recent times has resulted in a void on policy direction.

Court Annexed mediation (CAM)

Overview of the CAM Rules

During 2013 the minister of Justice asked the Rules Board to consider rules that will facilitate the

resolution of disputes that are brought to court by mediation.

During April 2013 the rules were eventually approved and launched in Krugersdorp. During 2015,

Minister Masutha launched the commencement of the CAM Project in Mahikeng under the name

Therisano – implying ‘negotiation’. Twelve sites were identified as pilot sites, nine in Gauteng and

three in North West.

The magistrate’s court act is not in line with the value system of today. Through innovation the

Rules Board, they developed rules that were in harmony with the Act. It did not include the High

Courts. Legal opinion, at the time, indicated to make CAM compulsory, may be fraught with legal

challenges in terms of the constitutional right to approach the court.

30 http://www.minersshotdown.co.za



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The rules of court will see, for the first time a court annexed mediation process being built into

the civil justice system. It proposes a voluntary mediation system that will run as a pilot project

at the magistrate’s courts. The genesis of these rules stems from the recognition that proactive

measures must be taken to breathe life to the constitutional right of access to justice. There is

however much debate as to the viability and effectiveness of these rules.

As it stands the rules suggest that mediation is a voluntary process that will be encouraged by

the courts. A party may refer a dispute to mediation at the inception of a dispute, during the

course of a trial but prior to judgment and a magistrate may on his/her own accord and for good

reason refer a matter to mediation at any time during the currency of the matter. It is further

envisaged that mediation would take place by agreement between both parties, unless the court

imposes the process, and that the parties could jointly select a mediator of their choice from a

pool of trained mediators. The parties to the dispute would have to pay the costs of the mediator.

A magistrate will manage the administrative process of mediation from inception to conclusion

in the capacity of a dispute resolution officer. Attorneys in this reality will have to advise and

perhaps represent their client differently, based on enhancing the effectiveness of negotiation

process through the use of the mediator. This will define the crux of skills that attorneys must

develop as to the manner in which cases are prepared and presented at the mediation process.

The impact of voluntariness of the use of mediation as a process in such a system will have to

take into account the effect of recent judgments by our courts. Magistrates may well provide

indirect pressure on parties and their attorneys to properly consider whether mediation is more

appropriate to resolving the particular disputes between the parties. Should the party and or its

attorney fail to demonstrate that there was proper consideration given before mediation was

not selected as a process choice and the magistrate finds otherwise, the client and or the attorney

could face a potential adverse costs order.

In the matter of MB v NB (2010) (3) 220 SGHC (aka the Brownlee judgment), Brassey AJ, in a

divorce matter enunciated the many benefits that mediation brings with it, the practical and fair



19

resolution it could provide to protracted litigation and the ultimate costs and time savings it

brings to an otherwise long drawn out process. The judge rationalized the responsibility that

clients and their attorneys have in the proper analysis of the dispute between them and the

appropriate process choices available. Certain matters could have easily been resolved through

effective mediation, instead of spending thousands of Rands on legal costs that could have been

easily used to the benefit of supporting the children of the divorced couple. The judge ordered

each party to bear its own costs and limited the costs that could be claimed by the attorneys. The

principles espoused were confirmed in the matter S v Mrs J and Mr J case no 695/2010 SCA.

The court-annexed mediation process consists of 6 steps, as illustrated in the figure below:

The Department of Justice reflections on CAM after one year

The court-annexed mediation has been in place in limited Magistrates Courts for over a year. A

recent report provided by the Department of Justice indicated the following findings- Over 1400

cases were dealt with in the pilot year. Over 290 mediators were appointed at a limited number

of courts.

It acknowledged that the system is not perfect. Some people assumed that CAM is free of charge.

When people were told the needed to pay, some were not keen to proceed. This is despite the

costs being minimal. The Department felt that it is important to change the culture of non-

payment. Sites were not always functional at an optimum level, which is not conducive to

mediation. Some Magistrates have been very proactive and referred matters for mediation on

Step 1: Request mediation

Step 2: Meeting to mediate

Step 3: Drafting a mediation agreement

Step 5: The mediation session

Step 4: Sending a Statement of Claim and a Statement of Defence to the mediator

Step 6A: Finalising the dispute where there is agreement

Step 6B: Finalising the dispute where there is no agreement



20

an on-going basis. There has been an extensive public communication process to inform the

public of CAM. This happened at the height of the project shortly after its launch.

One of the challenges of mediators is that they are not getting work. They have been appointed

a year ago and the majority have not dealt with a single matter. The Department is considering

introducing a roster or identifying mediators in specialist areas. Interestingly the Department is

considering trips abroad to learn from others. It has also been suggested that informal mediation

be embodied in our legislation. A lot of support was received from Universities. Requests were

received from organs of states that there is a need to urgently consider mediation for organs of

state

My perspective

Overall there are a number of challenges that the CAM project faces. This criticism is especially

important as the CAM is sold as a mechanism to improve access to justice. The diagram below

places in perspective the caseload done by CAM in comparison to the CCMA in its first year of

operation. Even though the pilot project of CAM is not as yet introduced at a national level it has

been operational in the business hub of the country. The numbers of mediation processes are

significantly low and indicate a number of critical challenges, which I believe is underestimated

by the Department of Justice and require significant steps.

1719

59222

0

10000

20000

30000

40000

50000

60000

70000

CAM CCMA

CASELOAD IN FIRST FULL YEAR OF OPERATION

CAM CCMA



21

The lessons we can take when introducing mediation in the formal legal system

Establishing a Multidisciplinary

Advisory team

Policy reform Mediation -

voluntary or compulsory,

payment, Standardization of

definitions, Policy flexibility a

user focus, adapt for local,

detail – LRA example

Professional body for mediators,

standards, ethical standards,

etc

Training – standardization, role

of universities, co-corporation

between org and universities

Professionalism – busy

mediators, YMI, Young

mediators and drive to educate

at schools universities,

regulation of mediators, commit

Surveys – we can constantly

measure and improve

Judicial activism

Adaptability of mediation in

rural areas

Legal aid for mediation

Funding models

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