UNCLE OSWALD’S Q&A FORUM – MAY 2026
TO MEDIATE OR NOT TO MEDIATE
Dear Uncle Oswald,
My construction company, Voltcon, is in litigation in the Johannesburg High Court against a developer, CityGrowth. Voltcon claims R48 million from CityGrowth for unpaid invoices dating back to 2021 for electrical equipment supplied and installed by Voltcom at a residential complex in Hillbrow, developed by CityGrowth. The litigation process has been protracted and expensive. CityGrowth’s defence against Voltcon’s claim is that the equipment is defective. The construction contract between Voltcon and CityGrowth does not contain an arbitration clause. The parties are therefore obliged to litigate in the Johannesburg High Court. Because CityGrowth failed to pay Voltcon, I have no money to pay legal representatives. I am running the litigation on my own. I have now received a notice in terms of High Court Rule 41A from CityGrowth’s attorneys. The notice requires of Voltcon to co-operate in the appointment of a mediator and in the furtherance of a facilitative mediation process. Apparently, without a mediation, and a certificate from the mediator, the Registrar of the High Court will not allocate a trial date.
I am opposed to have Voltcon’s claim against CityGrowth submitted to mediation, inter alia for the following reasons:
- The volumes of correspondence between me and CityGrowth’s CEO since 2021 clearly indicate that neither party is prepared to back down. The dispute is simply not capable of resolution through mediation.
- Mediation will only prolong an already protracted litigation process, increase the costs for both parties, and delay commercial and legal finality.
- CityGrowth’s CEO and I have had at least eight in-person settlement discussions since 2021, with no success. There is extreme acrimony between us.
- The crux of the dispute is whether there is any merit in CityGrowth’s defence that the equipment is defective. A finding on this dispute falls outside the scope of any mediator’s function and mandate. This dispute can only be determined by a Court, having considered expert opinion evidence. This is something a mediator in a facilitative mediation is not permitted to do.
- I, on behalf of Voltcon, refuse to settle the dispute for anything less than the sum total of the invoices, together with interest.
- Voltcon is already on the brink of insolvency because of CityGrowth’s non-payment. It cannot be expected of Voltcon to spend additional tens of thousands of rands on a mediation process which has no prospect of success.
My intention is to respond to CityGrowth’s Rule 41A notice by stating Voltcon’s refusal to participate in mediation, for the reasons set out above.
What do you think? Are these valid reasons to avoid mediation?
Best regards,
Ampie Ohm
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Dear Ampie,
On the face of it and with an adversarial approach to dispute resolution deeply ingrained in me over decades in practice, I have to agree. Your reasons for wanting to avoid mediation are compelling.
However, Voltcon’s construction contract with CityGrowth does not contain an arbitration clause. The parties do not have the benefit of an expeditious and cost-effective arbitration. A consequence of not having an arbitration clause is that the dispute has to be determined by the High Court in terms of the High Court Rules. As you have experienced, this comes with delay and expense.
Because you are litigating in the High Court, Uniform Rule[1] 41A finds application and so does the Gauteng Judge President’s Mandatory Court-annexed Mediation Directive and Protocol effective from 22 April 2025, revised on 13 June 2025, and amended on 27 October 2025 (the Directive and Protocol).
Rule 41A and the Directive and Protocol in essence render it mandatory for all civil actions in the Pretoria and Johannesburg High Courts to be subjected to court-annexed mediation and for a mediation outcome certificate to be issued by a mediator before the Registrar of the High Court may allocate a date for the hearing of your matter.
In short, since April 2025, there can be no hearing of any civil action in the Pretoria and Johannesburg High Courts without a preceding certified mediation.
In a recent judgment delivered on 17 November 2025 in the matter of Brondani v Brondani[2] heard in the Johannesburg High Court, Adams J was confronted with facts almost identical to those in the dispute between Voltcon and CityGrowth.
In Brondani the defendant took a view similar to yours. He also refused to participate in mediation, for reasons almost identical to yours.
The question before the Court in Brondani was whether the reasons put forward by the defendant for refusing to participate in mediation, constitute valid grounds upon which mediation could be avoided. This is the same question that you have posed to me. Because your refusal would end up before the same Court, and because the Court would be bound by the judgment in Brondani, it would make sense to carefully consider the judgment in Brondani and to decide whether it would make rational sense to persist in your refusal to mediate.
The Court in Brondani found that the reasons put forward by the defendant (in all respects similar to your reasons) do not constitute exceptional circumstances and do not excuse the parties from mandatory court-annexed mediation.
The Court’s reasons for coming to this finding include the following:
- To uphold a party’s subjective belief that a specific matter is not capable of extra-judicial resolution (i.e. through mediation) would defeat the purpose of the Directive and Protocol.
- The purpose and aim of the Directive and Protocol as expressly provided for in paragraph 2 of the Protocol is to provide a structured standardised yet flexible framework for implementing mandatory court-annexed mediation in the Gauteng (Pretoria and Johannesburg) Divisions of the High Court. Importantly, the Protocol aims to promote the use of mediation as an alternative dispute resolution mechanism to alleviate congestion on the Court rolls, as well as to enhance access to justice by providing an efficient, cost-effective and less adversarial method of resolving disputes. Moreover, the aim of the Protocol is to foster a culture of co-operation and mutual respect amongst litigants.
- If regard is had to the purpose and aim of the Directive and Protocol, parties should be excused from subjecting their disputes to mediation only in exceptional circumstances. Extreme acrimony between the parties and the fact that one of the parties to the litigation believes subjectively that mediation would be a waste of time, are not exceptional circumstances. The stance adopted by the defendant (in Brondani) misses the point of mandatory court-annexed mediation and loses sight of the fact that a mediator is an impartial third party who helps the parties to identify solutions. The mediator asks questions, reframes issues and helps the parties to understand each other. The Protocol also obliges the parties to act in good faith during the mediation process and to participate actively and constructively in mediation sessions. Moreover, the style of mediation required by the Protocol is facilitative. This means that the mediator facilitates a process of communication between the parties, so as to assist them to craft their own unique solution to the dispute.
The Court in Brondani concluded as follows:
“For all these reasons, I am of the view that the defendant should be compelled to cooperate in the appointment of a mediator and in the furtherance of the mediation process in accordance with the mandatory mediation Directive and Protocol.”
The Court the made an order compelling the defendant in Brondani to co-operate in the appointment of a mediator and in the furtherance of the mediation process in accordance with the mandatory mediation Directive and Protocol. Because the Directive and Protocol were by November 2025 introduced recently and litigants were only just getting used to court-annexed mediation, and because the question regarding what would constitute exceptional circumstances that would excuse parties from mediation was a novel one, the Court exercised its discretion not to make a cost order.
Therefore, Ampie, my reasoning is the following:
- Your refusal to participate in a mediation process in the litigation between Voltcon and CityGrowth is bound to result in an application by CityGrowth to compel Voltcom to co-operate in the appointment of a mediator and in the furtherance of a facilitative mediation process.
- Such an application, which will involve further delay and costs, will be heard by the same Court in which Brondani was heard.
- The Court will be bound by the judgment in Brondani.
- Because your reasons for refusing to mediate are almost identical to the ones put forward by the defendant in Brondani, the outcome is bound to be the same; your reasons will not be found to constitute exceptional circumstances and the Court will compel Voltcon to co-operate in the appointment of a mediator and in the furtherance of a facilitative mediation process.
- Moreover, although there was no cost order in Brondani because the issue was then still novel, there will most certainly be an adverse cost order against Voltcon this time because the Court has pronounced on the issue in Brondani.
My advice to you is to co-operate in the appointment of a mediator and in the furtherance of a facilitative mediation process, and to participate in the mediation with an open mind.
Statistics from the United Kingdom, where the culture of mandatory court-annexed mediation has already developed and matured over time, indicate a mediation success rate of more than 80%.
You never know. The result may very well be that both parties, on a commercial basis, are prepared to compromise for the sake of expeditious and less costly finality.
I wish you all the best.
Uncle Oswald
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See SAFLII.
Brondani v Brondani (2021/52977) [2025] ZAGPJHC 1157 (17 November 2025).
