COMMERCIAL DISPUTE RESOLUTION
Prescribed: Mediation
Chapter 3; Commercial mediation: a user's guide (2nd edition), Brand J , Steadman F &
•
Todd C (uploaded on sunlearn for students)
• Kgalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of
South Africa Ltd and Others (2020/12468) [2021] ZAGGPJHC (Rule 41A) [ para 22 – 31 of
the judgement]
• Commercial Mediation: Commercial conflict panacea or an affront to due process and the
justice ideal; R Feehily, The Comparative and International Law Journal of Southern Africa,
July 2015, Volume 48, No 2 [page 345 – 354]
• Mediation meta – model: the realities of mediation practice. Nadja Alexander.
• Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) – part III mediation
[para 39-47] judgement.
Mediation
Legislation:
•
◦ Companies Act of 2008
◦ Public Protector Act 23 of 1994
• Can be required to participate in mediation by SA Courts
Port Elizabeth Municipality v Various Occupiers 2005 (1)
SA 217 (CC)
Key Themes:
• Integration of Procedural and Substantive Justice:
◦ Justice cannot be strictly divided into procedural and substantive aspects.
◦ Mediation encourages proactive, honest engagement between parties to reach a
mutually acceptable resolution.
◦ Example provided -> Eviction cases
▪ Mediation discourages reliance on facelessness and anonymity, fostering human
dignity and future neighbourly relations
• Benefits of Mediation:
◦ Reduces litigation expenses
◦ Narrows areas of dispute
◦ Facilitates outcomes that respect human dignity
◦ Enhances prospects of establishing good neighbourliness.
, ◦ Promotes respect for the idea of living in a shared society.
Case-Specific Observations
• Eviction Context and Mediation Orders
◦ The case concerned eviction, where courts often order mediation and suspend
eviction orders during the mediation period.
◦ Section 7 of PIE aims to facilitate resolution, not exhaustively regulate the process.
• Central Legal Question:
◦ Is it permissible or appropriate for an appellate court to order mediation if the courts
of the first instance or SCA have not considered its use or non-use?
Courts Findings:
1. Timing and Feasibility of Mediation:
• The Court noted that too much time had passed for mediation to be effective in this
case.
• However, absence of mediation will be considered in assessing whether an eviction
order is just and equitable.
2. Compulsory Mediation:
• Modern systems increasingly favor compulsory mediation, where participation is
mandatory, but reaching a settlement is not.
• Mediation helps unite parties, reduce disputes, and resolve sticking points better than
adversarial processes.
• Litigation costs could be better used to facilitate outcomes promoting dignity and shared
societal values.
3. Challenges of Mediation at the Appellate Stage:
• By the time an appeal is heard, many advantages of mediation (e.g., cost-saving,
minimizing delays, and reducing hostility) are diminished.
• Mediation is most effective when the litigation outcome is uncertain.
• In this case, neither party supported mediation unconditionally at this late stage, making
it inappropriate to attempt.
4. Impact of No Mediation:
• The fact that mediation was not attempted remains a relevant factor in deciding if an
eviction order is just and equitable.
Conclusions:
• Mediation plays a crucial role in eviction cases to balance fairness, dignity, and societal
harmony.
• Courts should consider ordering mediation in appropriate cases, but its use depends
heavily on timing and context.
• Even when mediation is not feasible, its absence influences the court’s determination of
justice and equity in eviction orders.
R Feehily's Approach to Mediation
(a) Conceptualist:
• Ideal terms emphasising certain values, principles and objectives.
2
Prescribed: Mediation
Chapter 3; Commercial mediation: a user's guide (2nd edition), Brand J , Steadman F &
•
Todd C (uploaded on sunlearn for students)
• Kgalagadi Manganese (Pty) Ltd and Others v Industrial Development Corporation of
South Africa Ltd and Others (2020/12468) [2021] ZAGGPJHC (Rule 41A) [ para 22 – 31 of
the judgement]
• Commercial Mediation: Commercial conflict panacea or an affront to due process and the
justice ideal; R Feehily, The Comparative and International Law Journal of Southern Africa,
July 2015, Volume 48, No 2 [page 345 – 354]
• Mediation meta – model: the realities of mediation practice. Nadja Alexander.
• Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) – part III mediation
[para 39-47] judgement.
Mediation
Legislation:
•
◦ Companies Act of 2008
◦ Public Protector Act 23 of 1994
• Can be required to participate in mediation by SA Courts
Port Elizabeth Municipality v Various Occupiers 2005 (1)
SA 217 (CC)
Key Themes:
• Integration of Procedural and Substantive Justice:
◦ Justice cannot be strictly divided into procedural and substantive aspects.
◦ Mediation encourages proactive, honest engagement between parties to reach a
mutually acceptable resolution.
◦ Example provided -> Eviction cases
▪ Mediation discourages reliance on facelessness and anonymity, fostering human
dignity and future neighbourly relations
• Benefits of Mediation:
◦ Reduces litigation expenses
◦ Narrows areas of dispute
◦ Facilitates outcomes that respect human dignity
◦ Enhances prospects of establishing good neighbourliness.
, ◦ Promotes respect for the idea of living in a shared society.
Case-Specific Observations
• Eviction Context and Mediation Orders
◦ The case concerned eviction, where courts often order mediation and suspend
eviction orders during the mediation period.
◦ Section 7 of PIE aims to facilitate resolution, not exhaustively regulate the process.
• Central Legal Question:
◦ Is it permissible or appropriate for an appellate court to order mediation if the courts
of the first instance or SCA have not considered its use or non-use?
Courts Findings:
1. Timing and Feasibility of Mediation:
• The Court noted that too much time had passed for mediation to be effective in this
case.
• However, absence of mediation will be considered in assessing whether an eviction
order is just and equitable.
2. Compulsory Mediation:
• Modern systems increasingly favor compulsory mediation, where participation is
mandatory, but reaching a settlement is not.
• Mediation helps unite parties, reduce disputes, and resolve sticking points better than
adversarial processes.
• Litigation costs could be better used to facilitate outcomes promoting dignity and shared
societal values.
3. Challenges of Mediation at the Appellate Stage:
• By the time an appeal is heard, many advantages of mediation (e.g., cost-saving,
minimizing delays, and reducing hostility) are diminished.
• Mediation is most effective when the litigation outcome is uncertain.
• In this case, neither party supported mediation unconditionally at this late stage, making
it inappropriate to attempt.
4. Impact of No Mediation:
• The fact that mediation was not attempted remains a relevant factor in deciding if an
eviction order is just and equitable.
Conclusions:
• Mediation plays a crucial role in eviction cases to balance fairness, dignity, and societal
harmony.
• Courts should consider ordering mediation in appropriate cases, but its use depends
heavily on timing and context.
• Even when mediation is not feasible, its absence influences the court’s determination of
justice and equity in eviction orders.
R Feehily's Approach to Mediation
(a) Conceptualist:
• Ideal terms emphasising certain values, principles and objectives.
2
