South Africa is seeking a more cost and time effective resolution in resolving disputes. Society has become prone to institute legal action, or threaten to institute legal action, against another individual, without knowing the extent of law applicable. As a result, the legal system in South Africa is experiencing large backlogs in case management at Courts. However, with the implementation of the Rules Regulating the Conduct of the Proceedings of the Magistrates’ Courts of South Africa (“the Rules”), provision has been made to assist the justice system herein, by way of mediation together with Section 34 of the Constitution of South Africa Act No 108 of 1996 (as amended) (hereinafter referred to as the “Constitution”). Section 34 of the Constitution states the following:
“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.”
The Rules define mediation as follows:
“Mediation means the process by which a mediator assists the parties in actual or potential litigation to resolve the dispute between them by facilitating discussions between the parties, assisting them in identifying issues, clarifying priorities, exploring areas of compromise and generating options in an attempt to resolve the dispute.”
The Rules introduced mediation as a means to curb the back log. The purpose of mediation is as follows:
- Promote access to justice;
- Promote restorative justice;
- Preserve relationships between litigants or potential litigants;
- Facilitate an expeditious and cost-effective resolution;
- 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 interest or not;
- Provide litigant or potential litigants with solutions to the dispute, which are beyond the scope and powers of judicial officers.
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