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Court - annexed mediation rules of the magistrates’ courts

Whereas section 34 of the Constitution of the Republic of South Africa,1996 guarantees everyone the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court.

Whereas section 34 of the Constitution of the Republic of South Africa,1996 guarantees everyone the right to have any dispute that can be resolved by the application of the law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum;

And whereas section 6(1) of the Rules Board for Courts Law Act 107 of 1985 empowers the Rules Board for Courts of Law (Rules Board)  established under section 2 of that Act to review existing rules of court, to make rules for the Supreme Court of Appeal, the High Courts and the lower courts regulating the practice and procedure in connection with litigation and generally regulating any matter which may be necessary or useful for the proper conduct of the functions of the said courts in civil as well as criminal proceedings;

And whereas the Access to Justice Conference held in July 2011, under the leadership of the Chief Justice, towards achieving the delivery of accessible and quality justice for all, resolved that steps must be taken to introduce alternative dispute resolution, preferably court-annexed mediation or the CCMA kind of alternative dispute resolution, into the court system;

And whereas the main purposes of mediation are to:

  1. promote access to justice;
  2. promote restorative justice;
  3. preserve relationships between litigants or potential litigants which may become strained or destroyed by the adversarial nature of litigation;
  4. facilitate an expeditious and cost-effective resolution of a dispute between litigants or potential litigants;
  5. assist litigants or potential litigants to determine at an early stage of the litigation or prior to commencement of litigation whether proceeding with a trial or an opposed application is in their best interests or not;
  6. allow litigants or potential litigants to return to litigation should the attempt at mediation not be successful;
  7. dispense with litigation procedure and rules of evidence; and
  8. provide litigants or potential litigants with solutions to the dispute, which are beyond the scope and powers of judicial officers;

And whereas the Minister of Justice and Constitutional Development directed the Rules Board to make rules to regulate the procedure for voluntary referral to court-annexed mediation of civil disputes, to be implemented on a pilot basis in certain courts.

By Gerrie van der Watt
15 May 2013

TESTIMONIALS

Connie Theron, Practising Attorney - UCT Law Clinic
“While working at the University of Stellenbosch Legal Aid Clinic and later at the UCT Law Clinic, I found the pro bono mediation services of Gerrie van der Watt of the Mediation Centre to be highly professional and extremely effective in our divorce matters. It is fantastic that our clients, with little or no financial means, can benefit from such an excellent programme.

The mediators are able to provide a non-threatening environment in which the clients are able to talk openly about issues that matter most to them, but which the Court in a divorce matter may choose not to entertain. Through the mediation sessions, the clients are able to reach an agreement together which ultimately they are both happy with. In cases where mediation did not yield the result of a settlement, the process was still extremely valuable, giving the parties better perspective and highlighting the key issues in dispute.”