With effect from 22 April 2025, the Gauteng Division of the High Court introduced mandatory mediation before civil trials. As a result, parties must first undergo mediation before applying for a trial date. In practical terms, mediation is not optional in civil litigation within this division.
In one of the first judgments to engage substantively with this regime, the Gauteng High Court reaffirmed the compulsory nature of court-annexed mediation. In Brondani vs Brondani (2021/52977) [2025] ZAGPJHC (17 November 2025), Judge Adams considered whether a litigant may refuse mediation.
The refusal rested on claims of futility and prior failed settlement attempts. The court assessed these arguments under Uniform Rule 41A, read with the Directive introducing mandatory mediation and the applicable Mediation Protocol. The judgment makes it clear that mediation is not optional under this framework.
Background to the dispute
The dispute arose from a damages claim brought by the plaintiff, Roberto Brondani. He alleged that the defendant, Mauro Brondani, assaulted him in December 2019. The defendant counterclaimed and asserted that he was, in fact, the victim.
The plaintiff initiated the mediation process and served the prescribed amplified mediation notice, which triggers mediation under the rules. Despite this, the defendant refused to refer the matter to mediation. Consequently, the plaintiff launched an interlocutory application to compel compliance. At that stage, the court had to determine whether mediation was not optional in the face of resistance.
Objections to mediation and the court’s response
The defendant opposed the application. He argued that mediation would prolong already protracted litigation and increase costs. He relied on the parties’ history of failed settlement discussions. In his affidavit, the defendant expressed strong opposition and described mediation as a waste of time. He further asserted that the dispute could not be mediated at all.
The court rejected these submissions. Judge Adams held that subjective views about the futility of mediation do not amount to exceptional circumstances. The court reached the same conclusion regarding extreme acrimony between parties.
Allowing such objections would undermine the purpose of court-annexed mediation. That purpose includes reducing congestion on court rolls, improving access to justice, and encouraging cooperative dispute resolution. The judgment therefore reinforces that mediation is not optional simply because parties distrust the process.
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Consequences of non-compliance and practical guidance
Although the court accepted that the defendant’s response to the amplified mediation notice was not procedurally irregular, it found the substance lacking. The reasons advanced did not justify the avoidance of mediation.
Accordingly, the court ordered the defendant to cooperate in appointing a mediator and to participate in the mediation process in line with the Directive and Protocol. The defendant also had to deliver an amplified Rule 41A notice within ten days.
On costs, the court directed each party to bear its own expenses. Judge Adams noted that the defendant acted bona fide. The court also acknowledged that litigants continue to adjust to the new mediation framework. Even so, the message remains firm. Mediation is not optional, and good-faith participation is required.
The judgment underscores that mandatory mediation cannot be bypassed because parties believe it will fail. Prior settlement attempts do not excuse non-compliance. Only truly exceptional circumstances justify exemption from mediation. Extreme hostility and scepticism about success do not meet that threshold.
In conclusion
Compliance with the Protocol requires active engagement and meaningful participation in good faith. Finally, a recent amendment to the Mediation Protocol offers guidance where parties agree that a dispute cannot be mediated. In such cases, parties must provide a justifiable reason explaining why mediation is unsuitable.
Parties must also prepare a joint minute recording of that position and formulate a stated case for hearing on the opposed motion roll. If the parties disagree, an Umpire appointed under the Protocol will decide the issue. That decision will be final. Against this backdrop, the position is clear. Mediation is not optional, and it is firmly embedded in Gauteng civil procedure.
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| Raynold Tlhavani | Partner | mail me | | Maano Manavhela | Associate | mail me | |
| | Webber Wentzel | | |
