A note on interpreting the Directive introducing Mandatory Mediation in the Gauteng Division and its Protocol

The Gauteng High Court Directive (Directive) and Mediation Protocol (Protocol) introduced mandatory mediation in the Gauteng High Courts in April 2025. A year later, parties to disputes who are awaiting trial dates (and their attorneys) are still slow to hop onto the mandatory mediation bus. Even beyond Gauteng, litigants are compelled to at the very least consider mediation as a means of resolving the dispute (see Rule 41A of the Uniform Rules of Court) and even then, they have their list of reasons ready to be excused from voluntary mediation. Such a list includes reasons such as: “the matter is incapable of resolution”, to “it will only prolong the already protracted litigation”, and even, “the costs of the mediation will only increase the costs of the litigation”.

A judgment from the South Gauteng High Court considered a party’s reasons to be excused from mandatory mediation in the matter of the unreported decision of Brondani v Brondani (2021-52977) [2025] ZAGPJHC (17 November 2025). That matter involved a dispute between parties relating to damages between them following an alleged assault which took place in 2019. The plaintiff, Roberto Brondani, claimed damages from the defendant, Mauro Brondani, for an amount of just over R1 million. The defendant alleged that the plaintiff had actually assaulted him and damaged his throat and voice box. He accordingly instituted his own counterclaim for damages in an amount over R2.5 million against the plaintiff.

To comply with the Mediation Protocol, the defendant delivered an Amplified Mediation Notice and recorded that the dispute was not capable of resolution by way of mediation. He stated the following reasons why mediation was not viable – mediation would:

• prolong the litigation (the litigation had been going for at least 6 years);
• increase the parties’ costs; and
• be a futile exercise given that the parties had attempted to settle the matter previously with no success and that to find fault on the part of either party would be beyond the scope of the mediator’s mandate.

In response, the plaintiff launched an application to the Court to compel the defendant to comply with the Mediation Protocol and, in essence, requested the court to compel the defendant to participate in mediation. The plaintiff was able to do so, given that, in terms of the Mediation Protocol, if a party fails to deliver an Amplified Mediation Notice rejecting the referral of the matter to mediation “without cogent reasons”, the notice will be considered as “irregular”.

In considering whether to compel the defendant to mediate the matter, the court reflected on two issues. Firstly, whether the defendant’s stance was justifiable enough to bypass the mandatory mediation process and secondly, whether the defendant’s Amplified Mediation Notice should be classified as “irregular”.

In respect of the latter, the Court found that the defendant’s notice was not irregular and that the defendant had properly set out cogent reasons applicable why he did not wish to mediate and which were particular to the matter. In respect of the former, however, the Court found that the defendant’s reasons fell short of being excused from the mediation process. The Court held that the purposes of the mediation process, as envisaged by the Mediation Protocol, were, amongst others, to foster a culture of cooperation and mutual respect among litigants and to enhance access to justice by providing an efficient, cost-effective and less adversarial method of resolving disputes. Because of this, in order for parties to be excused from mandatory mediation, the court held that “exceptional circumstances” must exist. The Court, however, did not define what constitutes an exceptional circumstance but rather spelt out what would not qualify, namely, extreme acrimony between the parties and the fact that one of the litigants believes subjectively that mediation would be a waste of time.

In the Brondani matter, the Court found that the defendant’s reasoning that the parties had bad blood between them and that they had engaged in prior settlement discussions had no merit. The Court reiterated that this was because mediation involves an impartial third party, the mediator, who reframes issues between the parties, helps them identify solutions and facilitates a process of communication between them. The defendant was accordingly compelled to cooperate in the mediation process.

The Brondani judgment provides litigants and their attorneys with an understanding that mandatory mediation can be avoided if exceptional circumstances exist. It also provides litigants with some clarification for litigants as to what does not constitute such exceptional circumstances. Other exceptional circumstances could be where a precedent needs to be set in case law, or it is a matter of public interest where one ought not to compromise his/her rights, for example. If litigants and their attorneys are serious about resolving disputes efficiently and with less cost, as echoed in the purposes of the Mediation Protocol, then a more considered approach must be adopted when deliberating whether the matter can be effectively mediated, instead of relying on the run-of-the-mill excuses to avoid mandatory mediation.