LME3701
Assignment 2 Semester 2 2025
2 2025
Unique Number:
Due date: September 2025
TABLE OF CONTENTS
HISTORICAL APPROACH ........................................................ 3
COMPARATIVE APPROACH ................................................. 18
DISCLAIMER & TERMS OF USE
Educational Aid: These study notes are intended to be used as educational resources and should not be seen as a
replacement for individual research, critical analysis, or professional consultation. Students are encouraged to perform
their own research and seek advice from their instructors or academic advisors for specific assignment guidelines.
Personal Responsibility: While every effort has been made to ensure the accuracy and reliability of the information in
these study notes, the seller does not guarantee the completeness or correctness of all content. The buyer is
responsible for verifying the accuracy of the information and exercising their own judgment when applying it to their
assignments.
Academic Integrity: It is essential for students to maintain academic integrity and follow their institution's policies
regarding plagiarism, citation, and referencing. These study notes should be used as learning tools and sources of
inspiration. Any direct reproduction of the content without proper citation and acknowledgment may be considered
academic misconduct.
Limited Liability: The seller shall not be liable for any direct or indirect damages, losses, or consequences arising from
the use of these notes. This includes, but is not limited to, poor academic performance, penalties, or any other negative
consequences resulting from the application or misuse of the information provided.
, For additional support +27 81 278 3372
TABLE OF CONTENTS
HISTORICAL APPROACH ....................................................... 3
COMPARATIVE APPROACH ................................................. 18
, For additional support +27 81 278 3372
HISTORICAL APPROACH
THE HISTORICAL DEVELOPMENT OF ALTERNATIVE DISPUTE RESOLUTION
IN SOUTH AFRICA
1. INTRODUCTION
The evolution of Alternative Dispute Resolution (ADR) in South Africa reflects a
broader international trend towards more efficient, participatory, and restorative
forms of justice. ADR mechanisms such as mediation, arbitration, and plea
bargaining offer an alternative to adversarial litigation, aiming to resolve disputes in a
manner that is cost-effective, less time-consuming, and more accessible to the
public. Historically, South Africa‟s legal system was rooted in English common law
traditions which emphasised formal court procedures. However, growing concerns
about access to justice, court backlogs, and the high cost of litigation have
necessitated a shift towards ADR processes.1
The adoption of arbitration laws in the 1960s and subsequent reforms, including the
Arbitration Act of 1965, provided the first structured legal framework for ADR in the
country.2 Since then, judicial initiatives, such as court-annexed mediation and the
establishment of specialist divisions like the Commercial Court, have further
enhanced ADR‟s legitimacy and accessibility.3 More recently, the South African Law
Reform Commission has proposed the introduction of a Mediation Act, signalling
recognition of ADR as a central feature of the justice system.4
This research, using a historical approach, will trace the development of ADR in
South Africa from its statutory and case law origins to its current role in the justice
system. The study will highlight how historical milestones shaped ADR‟s
effectiveness and its potential to complement litigation..
2. PROBLEM STATEMENT
1
South African Law Reform Commission, Project 94: Alternative Dispute Resolution Discussion Paper (2023).
2
Arbitration Act 42 of 1965.
3
Cassim, F. (2019). "Court-Annexed Mediation in South Africa: A New Era for Access to Justice." South African
Law Journal, 136(3), 451–474.
4
South African Law Reform Commission (2022). Discussion Paper on Mediation. Pretoria: SALRC.
, For additional support +27 81 278 3372
Although ADR has been part of the South African legal landscape for decades, its
integration into the justice system remains inconsistent and fragmented. Arbitration is
regulated by the Arbitration Act of 1965, a statute criticised for being outdated and
misaligned with modern international arbitration standards.5 Court-annexed
mediation, introduced in 2014 as a pilot project under the Rules Board for Courts of
Law Act, has struggled to gain widespread acceptance due to limited awareness,
inadequate training of mediators, and insufficient institutional support.6
In the criminal context, mechanisms such as plea bargaining, recognised under
section 105A of the Criminal Procedure Act, 1977, reflect the beginnings of ADR
principles in criminal justice.7 However, their use has raised concerns about fairness,
transparency, and the protection of victims‟ rights.8 The South African Law Reform
Commission has acknowledged these gaps and, through recent discussion papers,
proposed a dedicated Mediation Act to provide legislative certainty.9
The problem is therefore twofold: first, ADR mechanisms in South Africa have
developed in a piecemeal manner, lacking cohesive legislative and institutional
frameworks. Second, the historical reliance on litigation continues to overshadow
ADR, limiting its potential to deliver accessible, timely, and affordable justice.
Addressing these issues requires a historical study to assess the evolution of ADR in
South Africa and evaluate how past developments inform present challenges.
3. HYPOTHESIS
This study proceeds from the hypothesis that the historical development of ADR in
South Africa demonstrates a gradual but incomplete shift from reliance on litigation
to greater recognition of mediation, arbitration, and other consensual mechanisms. It
is anticipated that the fragmented legislative and institutional history of ADR,
particularly the outdated Arbitration Act of 1965 and the limited implementation of
court-annexed mediation, has impeded the full potential of ADR to provide cost-
5
Arbitration Act 42 of 1965; see also Butler, D. & Finsen, E. Arbitration in South Africa: Law and Practice (Juta
2012) 33.
6
Rules Board for Courts of Law Act 107 of 1985; Department of Justice and Constitutional Development, Court-
annexed Mediation: Pilot Project Report (2016).
7
Criminal Procedure Act 51 of 1977, s 105A.
8
S v Armugga 2005 (2) SACR 259 (N).
9
South African Law Reform Commission, Project 94: Alternative Dispute Resolution Discussion Paper (2023).
Assignment 2 Semester 2 2025
2 2025
Unique Number:
Due date: September 2025
TABLE OF CONTENTS
HISTORICAL APPROACH ........................................................ 3
COMPARATIVE APPROACH ................................................. 18
DISCLAIMER & TERMS OF USE
Educational Aid: These study notes are intended to be used as educational resources and should not be seen as a
replacement for individual research, critical analysis, or professional consultation. Students are encouraged to perform
their own research and seek advice from their instructors or academic advisors for specific assignment guidelines.
Personal Responsibility: While every effort has been made to ensure the accuracy and reliability of the information in
these study notes, the seller does not guarantee the completeness or correctness of all content. The buyer is
responsible for verifying the accuracy of the information and exercising their own judgment when applying it to their
assignments.
Academic Integrity: It is essential for students to maintain academic integrity and follow their institution's policies
regarding plagiarism, citation, and referencing. These study notes should be used as learning tools and sources of
inspiration. Any direct reproduction of the content without proper citation and acknowledgment may be considered
academic misconduct.
Limited Liability: The seller shall not be liable for any direct or indirect damages, losses, or consequences arising from
the use of these notes. This includes, but is not limited to, poor academic performance, penalties, or any other negative
consequences resulting from the application or misuse of the information provided.
, For additional support +27 81 278 3372
TABLE OF CONTENTS
HISTORICAL APPROACH ....................................................... 3
COMPARATIVE APPROACH ................................................. 18
, For additional support +27 81 278 3372
HISTORICAL APPROACH
THE HISTORICAL DEVELOPMENT OF ALTERNATIVE DISPUTE RESOLUTION
IN SOUTH AFRICA
1. INTRODUCTION
The evolution of Alternative Dispute Resolution (ADR) in South Africa reflects a
broader international trend towards more efficient, participatory, and restorative
forms of justice. ADR mechanisms such as mediation, arbitration, and plea
bargaining offer an alternative to adversarial litigation, aiming to resolve disputes in a
manner that is cost-effective, less time-consuming, and more accessible to the
public. Historically, South Africa‟s legal system was rooted in English common law
traditions which emphasised formal court procedures. However, growing concerns
about access to justice, court backlogs, and the high cost of litigation have
necessitated a shift towards ADR processes.1
The adoption of arbitration laws in the 1960s and subsequent reforms, including the
Arbitration Act of 1965, provided the first structured legal framework for ADR in the
country.2 Since then, judicial initiatives, such as court-annexed mediation and the
establishment of specialist divisions like the Commercial Court, have further
enhanced ADR‟s legitimacy and accessibility.3 More recently, the South African Law
Reform Commission has proposed the introduction of a Mediation Act, signalling
recognition of ADR as a central feature of the justice system.4
This research, using a historical approach, will trace the development of ADR in
South Africa from its statutory and case law origins to its current role in the justice
system. The study will highlight how historical milestones shaped ADR‟s
effectiveness and its potential to complement litigation..
2. PROBLEM STATEMENT
1
South African Law Reform Commission, Project 94: Alternative Dispute Resolution Discussion Paper (2023).
2
Arbitration Act 42 of 1965.
3
Cassim, F. (2019). "Court-Annexed Mediation in South Africa: A New Era for Access to Justice." South African
Law Journal, 136(3), 451–474.
4
South African Law Reform Commission (2022). Discussion Paper on Mediation. Pretoria: SALRC.
, For additional support +27 81 278 3372
Although ADR has been part of the South African legal landscape for decades, its
integration into the justice system remains inconsistent and fragmented. Arbitration is
regulated by the Arbitration Act of 1965, a statute criticised for being outdated and
misaligned with modern international arbitration standards.5 Court-annexed
mediation, introduced in 2014 as a pilot project under the Rules Board for Courts of
Law Act, has struggled to gain widespread acceptance due to limited awareness,
inadequate training of mediators, and insufficient institutional support.6
In the criminal context, mechanisms such as plea bargaining, recognised under
section 105A of the Criminal Procedure Act, 1977, reflect the beginnings of ADR
principles in criminal justice.7 However, their use has raised concerns about fairness,
transparency, and the protection of victims‟ rights.8 The South African Law Reform
Commission has acknowledged these gaps and, through recent discussion papers,
proposed a dedicated Mediation Act to provide legislative certainty.9
The problem is therefore twofold: first, ADR mechanisms in South Africa have
developed in a piecemeal manner, lacking cohesive legislative and institutional
frameworks. Second, the historical reliance on litigation continues to overshadow
ADR, limiting its potential to deliver accessible, timely, and affordable justice.
Addressing these issues requires a historical study to assess the evolution of ADR in
South Africa and evaluate how past developments inform present challenges.
3. HYPOTHESIS
This study proceeds from the hypothesis that the historical development of ADR in
South Africa demonstrates a gradual but incomplete shift from reliance on litigation
to greater recognition of mediation, arbitration, and other consensual mechanisms. It
is anticipated that the fragmented legislative and institutional history of ADR,
particularly the outdated Arbitration Act of 1965 and the limited implementation of
court-annexed mediation, has impeded the full potential of ADR to provide cost-
5
Arbitration Act 42 of 1965; see also Butler, D. & Finsen, E. Arbitration in South Africa: Law and Practice (Juta
2012) 33.
6
Rules Board for Courts of Law Act 107 of 1985; Department of Justice and Constitutional Development, Court-
annexed Mediation: Pilot Project Report (2016).
7
Criminal Procedure Act 51 of 1977, s 105A.
8
S v Armugga 2005 (2) SACR 259 (N).
9
South African Law Reform Commission, Project 94: Alternative Dispute Resolution Discussion Paper (2023).
