We use cookies to improve your browsing experience. By continuing to visit this site, you agree to our use of cookies.

Family and Divorce law in South Africa - A Comprehensive Guide
  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities

rule 41A mediation

CONTACT

​Mediation the New Rule 41A of the High Court


Unpacking Rule 41A of the High Court: A New Dawn in Mediation

1. Initial Overview

At the crux of our legal framework lies Rule 41A of the High Court, a provision that seems to have lawyers in a bit of a quagmire as they try to fathom how this rule, coupled with online mediation, could be leveraged to resolve their clients' cases. The emergence of Rule 41A beckons a new era where a proficient and seasoned mediator steps into the fray, assisting lawyers in either settling their clients’ cases or narrowing down the contentious issues. This shift is poised to leave a lasting imprint on our litigation landscape, as mediation is envisioned to become a mainstream recourse for dispute resolution.

2. Setting the Mediation Stage

Rule 41A lays down the foundation for litigants to explore mediation before taking the legal battle to the courtroom.
Within sub rule (2)(a), a plaintiff or applicant is required to submit a specified Rule 41A Notice expressing either consent or opposition to mediation before any summons or motions are issued.

Following suit, sub rule (2)(b) mandates the defendant or respondent to also file a designated Rule 41A Notice of consenting or opposing mediation, before a plea or opposing papers are issued.

According to sub rule (2)(c), these notices should substantially align with Form 27 of the First Schedule. As stipulated in sub rule (2)(d), the notices are to be filed without prejudice and are not to be submitted to the Registrar.

The essence of this provision is to keep the parties' fundamental stances towards mediation undisclosed to the trial judge until the trial's conclusion.

If either or both parties opt to oppose mediation, they must clearly and succinctly state the grounds in their sub rule (2) Notices as to why the case is or isn't suitable for mediation.

A scenario that comes to mind is when urgent relief is sought from the court. Much like in the UK, it is anticipated that case law will evolve to offer lawyers guidance on whether a dispute is mediatable or not.

3. Advancing Towards Mediation

It's probable that in a majority of cases, parties will issue notices under sub rule (2) affirming their case's suitability for mediation, opting for this path rather than facing the risk of an adverse cost order at the trial's end.

The aim of sub rule (2) is to compel parties to declare their stance on mediation early in the process.

This rule, however, doesn’t immediately usher in mediation. It necessitates a secondary step: a formal referral to mediation.

Sub rule (3) elaborates that parties may at any juncture of the proceedings, notwithstanding sub rule (2), refer their dispute to mediation, albeit with the court's leave if the hearing has commenced.

A judge or a Rule 37A case management judge may, as per (3)(b), direct the parties to contemplate referring the dispute to mediation.
Yet, sub rule (3) leaves the process of referral to mediation vague. It's sub rules (4)(a) and (4)(b) that illuminate the pathway.

4. Embarking on the Mediation Journey

The preliminary step entails the parties lodging a Joint Minute as per sub rule 4(a) documenting their resolve to mediate the dispute or any facet thereof.

The consequence of this initial step, as highlighted in sub rule (4)(c), is the suspension of time constraints for pleadings, notices, and affidavits from the date of filing the aforementioned Joint Minute until mediation concludes. However, any party suspecting abuse of this suspension may petition the court to lift it.

As dictated by sub rule (4)(d), the mediation should reach completion 30 days from the date of signing the Joint Minutes filed in alignment with sub rule (4)(a), though a court may extend this duration on valid grounds.

The subsequent step, as outlined in sub-rule (4)(b), involves the parties entering into an Agreement to Mediate.

Typically, parties sign an agreement to mediate before the actual mediation, agreeing on the following:
  • Selection of a duly qualified mediator,
  • Covering the costs of mediation, including the mediator's fees,
  • The timing and venue for the mediation.

Engaging in an Agreement to Mediate isn’t straightforward as disputes are likely to arise concerning who qualifies as a competent mediator. It's advisable for lawyers to participate in complimentary, no-strings-attached online pre-mediation sessions usually offered by veteran mediators, where they can finalize an Agreement to Mediate and decide on their mediator selection.

5. The Mediation Process

The third step unfolds when mediation takes place as per the Agreement to Mediate. All dialogues and disclosures, be they oral or written, during the mediation proceedings remain confidential and are inadmissible as evidence as per sub rule (6), unless otherwise provided by law or discoverable under the rules.

Rule 41A mediation is expected to not be purely facilitative in practice. Lawyers unfamiliar with the varied styles of mediation should acquaint themselves swiftly. It's crucial to understand what to expect from the mediator and what their clients are anticipating in terms of costs. Hence, attending a free pre-mediation (information) session is invaluable.

6. Concluding the Mediation

Post-mediation, certain steps are to be taken:

As per sub rule (7)(a), the parties alongside the mediator must notify the Registrar and other parties through a Notice that the mediation has concluded.
Failing to do so, (7)(b) states that the suspension of time limits under this rule nonetheless expires, unless a court decides otherwise.

Sub rule (8)(b) mandates the parties and the mediator to file a Joint Minute within 5 days following the mediation’s conclusion, indicating:

  • Whether a full or partial settlement was achieved or if mediation was unsuccessful, and
  • The issues on which agreement was reached that no longer necessitate a court hearing.
​
It's a collective responsibility of the parties as per sub rule (8)(c) to file the (8)(b) Joint Minute with the Registrar.

Sub rule (8)(a) articulates[3] that the mediation shall be considered completed 30 days post the signing of the Joint Minute as referenced in sub rule (4)(a), and the suspension of time limits shall then lapse.

Should the mediation wrap up before the 30 days, the parties may file the Notice as envisaged in sub rule (7)(a) that the mediation has concluded, to ensure the 30-day suspension of time limits for court processes can be lifted earlier.

Sub rule (8)(d) dictates that no offer or tender made without prejudice under this sub rule shall be disclosed to the court at any point before a judgement is rendered.

Sub rule (8)(e) establishes that Rule 41 applies mutatis mutandis if the parties reached a settlement during mediation. Rule 43(3) stipulates that if a settlement is achieved, the plaintiff’s attorney must inform the Registrar, and Rule 41(4) provides that any party to a written settlement signed by all parties may apply for judgement as per the settlement with a five days' notice.

7. Costs and Confidentiality Concerns

Sub rule (9)(a) posits that unless the parties agree otherwise, the costs of mediation shall be shared equally.
​
Sub rule (9)(b) provides that when deliberating on an order for costs of the action or application, the court may consider the sub rule.

CONSULT OUR LAWYERS ONLINE

Consult Online on Zoom, Whatsapp, Telephone and in person.
book a lawyer

Main Menu

Cohabitation and Living Together
Engagement and the Law
Formalities of Marriage in South Africa
Same-Sex Relationships
Unmarried Parents and Children
Parental Rights and Responsibilities
Care and Contact (Custody) of Children
Divorce In South Africa
Divorce Process in South Africa
Division of Assets in Divorce
Divorce and Retirement Funds
Rule 43 and Interim Maintenance
Divorce a Missing Spouse
Adultery, Suing a Third Party
International Divorces in South African Courts
Parental Rights
Child Maintenance
Spousal Maintenance
Domestic Violence and Abuse

Family and Divorce Law Links

Family Law Links
Family Law Legislation

Family Law Matters
Court Judgements
Court Rolls

Online Services

Online DIY Divorce
Online Managed Divorce
Online Antenuptial Contracts
​Divorce Online
​Book A Lawyer
​

Partner Services

Family Law Mediation
Collaborative Divorce
Divorce Attorney Cape Town

Contact Details

​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


​
Email: familylaw@mpw.co.za
Facebook: divorceattorneys
Twitter: @bertuspreller

Family and Divorce Law Blogs

Divorce Attorney 
​Family Laws

© 2025 -  All content on this website is under copyright of  SplashLaw- All Rights Reserved.
Legal Notices
  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities