The introduction of Rule 41A of the Uniform Rules of Court, which came into effect on 9 March 2020, brought about a new focus on mediation as an alternative method of dispute resolution. In terms of Rule 41A, parties are now required to contemplate mediation and the possibility of settlement before launching into any new litigation proceedings, making this voluntary process a mandatory consideration when litigating. Rule 41A mediation can assist in resolving disputes before they become costly, drawn-out proceedings, however the enforcement of the rule by the courts has been inconsistent. Case law suggests that non-compliance with Rule 41A has been met with relative leniency by the courts. This article will consider the application of Rule 41A, its benefits and the consequences non-compliance.

Application of Rule 41A

Uniform Rule 41A(2)(a) states that:

In every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation.”

Similarly, Rule 41A(2)(b) requires the defendant or respondent to serve a corresponding notice on the plaintiff or applicant indicating either their acceptance or rejection of the referral. This response should be served upon delivery of the notice of intention to defend or oppose or “at any time thereafter, but not later than the delivery of a plea or answering affidavit”.

The notice described in Rule 41A must meet certain requirements for validity. Parties must not only indicate their agreement or opposition to mediation, but also give good cause by stating the reasons upon which their averment is founded. Substantively Rule 41A notices must be formatted in accordance with Form 27 (Rule 41A(2)(c)).

It is also important to note that, in terms of Rule 41A(2)(d), these notices are considered “without prejudice”, which means that any admission they contain cannot be used against either party in any subsequent litigation. Should the parties both agree to mediate, the process is regulated by Rule 41A(4).

The Nature and Benefits of Mandatory Mediation

In Kalagadi Manganese (Pty) Ltd v Industrial Development Corporation of South Africa Ltd [2021] ZAGP JHC Judge Spilg defined the mediation in terms of Rule 41A as ‘a voluntary non-binding non-prescriptive dispute resolution process’. Given its non-binding nature, mediation must be voluntary to be effective. Rule 41A does not change the nature of mediation nor force unwilling parties to participate. It is mandatory only in the sense that it obligates parties to consider whether a matter is capable of being mediated and to then substantiate their decision.

The purpose of the Rule 41A mediation process is to expedite resolution of dispute, simultaneously alleviating the courts’ case load and promoting access to justice. It is also highly beneficial to the parties as it may save them substantial time and costs associated with litigation. Where mediation is unsuccessful, the process is still beneficial as it helps to ascertain the specific issues that require adjudication.

The Consequences of Non-Compliance

Where a party fails to comply with Rule 41A procedure they may receive notice of an ‘irregular step’ from their opponent. This notice requires the offending party to remedy the irregularity prior to taking further steps in proceedings, resulting in further delays and costs.

Failure to engage with the Rule41A process may result in a punitive costs order for the unreasonable party. For example, where mediation is possible but a party fails to engage in discussions, to an unreasonable degree, a court may consider this when making a costs award. Either party may bring the Rule 41A notices to the attention of the court in this regard.

However, a judge cannot force parties to mediate. Rule 41A(3)(b) provides that a Judge may direct the parties to consider mediation at any point before judgment, but not that mediation can be imposed on the parties. This would be contrary to the nature of mediation as a voluntary process.

According to recent case law, the current judicial approach to non-compliance with rule 41A appears to be practical but inconsistent.

In Nedbank Limited v Wesley Groenewald Familie Trust [2021] FB (“Nedbank”) the defendant used the plaintiff’s failure to file a Rule 41A notice as a defence to oppose an application for summary judgment. While the plaintiff accepted this defence, the Court pointed out that the defendant had also failed to file their Rule 41A notice. The Court noted that in M N v S N [2020] ZAWCHC 157 Acting Judge Nekosie declined to uphold the defence of non-compliance with Rule 41A, reiterating that ‘the rules are there for the Court and not the Court for the rules’. The Court in Nedbank noted that on the facts, the matter was unlikely to be resolved through mediation anyway and dismissed the non-compliance defence.

In Nomandela v Nyandeni Local Municipality & Others [2021] ECM the Court recommended a practical approach, finding that the applicants’ failure to comply with Rule 41A did not justify striking the matter from the roll. The applicants sought condonation for their non-compliance, but the Court held that condonation would only be necessary if either party had elected to mediate. As the respondents also failed to file their Rule 41A notice and the matter required an immediate decision, the Court decided to proceed with the matter rather than strike it from the roll.

However, the Court in Matsaung v Mamahule Traditional Authority [2022] ZALMPPHC upheld a procedural point raised by the appellants regarding the respondent’s failure to comply with Rule 41A. The matter was struck from the roll and later re-enrolled after the Rule 41A notices had been served. Although there was no costs order against the offending party, the non-compliance resulted in delay and additional costs for both parties.


Although case law suggests that the courts have taken a practical approach to non-compliance, there is still some inconsistency. As such, it is prudent to comply with Rule41A rather than risk unnecessary delays and costs. Regardless of the benefit in complying with court procedure, mediation is a valuable process in resolving disputes in a holistic and cost-effective way.

If you have any queries in connection with the above or the mediation process, please contact us here.


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