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Now You Must Talk Before You Sue

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Want to sue someone? New court rules require you to talk it out first!

On 9 March 2020 new court rules will be implemented that require those in a dispute to try and solve their dispute through talking, listening and compromising. Here’s what citizens should know about mediation before litigation in South Africa.

For most South Africans, there are many obstacles on the road to justice, whether it’s complicated legal jargon, lengthy court processes or over-burdened courts. Of course, the most prominent barrier is the fact that the law is not affordable for the people of our Nation. To place things into perspective, recent studies have found that the average South African household would need to save a week’s income to afford a one-hour consultation with an attorney.

Not to mention, there are also other consequences. “Taking a case to court is not only financially draining, but it can also be emotionally strenuous. Most procedures are drawn out, leaving people uncertain about their future,” says Adv. Jackie Nagtegaal, Managing Director at the multi-award winning legal insurance brand, LAW FOR ALL. In short, going to court isn’t always an ideal way to solve legal problems.

But, there’s some light at the end of the proverbial tunnel.

A new rule: more talk, less court!

Recently, the Rules Board for Courts of Law announced that it has implemented an amendment that will firmly push for mediation over litigation. As of 9 March 2020, the High Courts will require those involved in a lawsuit to declare whether or not they have considered mediation as a solution to their dispute. It will also require attorneys to confirm whether they have advised clients to take the mediation route or not. What’s more, before the parties are allowed to go to court, they must complete a “Form 27” which requires a clear and concise description of the reasons why they believe the dispute is not capable of mediation. The rule also gives judges the power to direct parties in dispute to first consider mediation. “This decision is very much in line with what’s happening internationally, especially in family-related matters,” states Nagtegaal. “In the UK, access to the courts is seen as a last resort; and in Sweden, no family law cases go through litigation because of the hostility a court case can cause.”

What exactly is mediation, and what are the benefits?

Simply put, mediation is all about resolving a dispute outside of the courtroom (i.e. not through litigation). Legal literature often compares litigation to entering an arena for battle. In contrast, mediation attempts to work towards a win-win outcome. Essentially, it is a confidential process in which a neutral person (known as a mediator) actively assists opposing parties in working towards a negotiated agreement or outcome in a particular dispute. The great thing is that the parties are in firm control of the terms of the resolution to their problem, and not the mediator or a judge.

The key benefits of mediation include:

  • Legal disputes are generally resolved quicker, in less time
  • Lengthy and stressful court battles (which can take between 3 months and 3 years) are avoided
  • The legal costs are significantly reduced
  • The process keeps private matters private.
  • It keeps relationships (personal or professional) intact.
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Alan Straton

Chief Cook, Bottle Washer and Broom Mechanic at MyPE
Passionate about Port Elizabeth and definitely NOT packing for Perth. Alan's ethos is epitomised in the words of Nelson Mandela; "I have fought against white domination and I have fought against black domination. I have cherished the idea of a democratic and free society. If need be, it is an ideal for which I am prepared to die." See more articles by Alan.