With effect from 27 October 2025, the Mediation Directives and Protocol for the Gauteng Division of the High Court were amended. The most important change is the introduction of alternative routes to obtaining a hearing date.
Disputes which cannot be resolved by mediation
Where a dispute is incapable of being resolved by mediation because of its nature, litigants can obtain a hearing date by producing either a joint minute setting out the reasons why mediation is unsuitable or, where litigants cannot agree, a written direction from an Umpire that mediation should not take place.
The joint minute must also set out:
· a stated case on common cause facts, if the dispute is on a point of law;
· the exact issues which require a ruling, if the dispute is a factual one.
The amended directives are silent on what the joint minute must say when the dispute is on both law and facts, but presumably the issues will need to be clearly outlined.
Stated cases on points of law may be set down on the opposed motion roll without therefore requiring a trial date. Factual disputes (and those concerning both facts and law) will continue to be ventilated on the trial roll.
- Adjustment to time period for filing amplified Rule 41A notices and default judgments
The minimum response period to an amplified Rule 41A mediation notice is now 15 days. Any party may request a reasonable extension on good grounds, and such requests may not be unreasonably refused.
- Where a party is compelled to cooperate and still defaults, the compliant party may enrol a default judgment application on notice. At that hearing, the court may declare contempt, strike out a claim or defence, and grant substantive relief on both merits and quantum. If a trial date is withdrawn because mediation steps were not taken, any ensuing default judgment application must be allocated a date no later than six months after the withdrawn trial date.
- The role of the Umpire
Disputes about extensions in connection with mediation notices, the reasonability of refusals to mediate, whether a matter is susceptible to mediation, or the entitlement to apply for a trial date can be determined by a court-appointed Umpire, who the Protocol describes as the Mediation Judge. The Umpire can direct litigants to approach the Special Interlocutory Court before approaching them. The SIC is a motion court dealing specifically with interlocutory matters. The Umpire’s decision on the suitability of a matter for mediation, where parties cannot agree, is stated to be final (unless that dispute is being ventilated before the SIC). The directives do not contemplate the Umpire setting aside an SIC ruling.
There is undoubtedly merit in encouraging litigants to mediate. However, litigants potentially face additional hurdles, delays, and costs in matters where there is disagreement on the suitability of a matter for mediation requiring ventilation before an Umpire and possibly also a referral to the Special Interlocutory Court.
The High Court challenge to the Directive and Protocol (launched prior to the amendment discussed in this blog) is yet to be adjudicated.
The Directive, Protocol and Amendment are available at Directive, Mediation Protocol and Amendments to the Revised Directive Introducing Mandatory Mediation in the Gauteng Division and to the Mediation Protocol.
You can also see our prior blogs on these mediation-related developments at Mandatory mediation: A new era for civil trials in Gauteng? and Mandatory Mediation in the Gauteng High Court: Some Developments.