,LME3701 Assignment 2 (COMPLETE ANSWERS)
Semester 2 2025 – DUE September 2025; 100% correct
solutions and explanations.
BOTH HISTORICAL AND HISTORICAL APPROACH
PROVIDED
HISTORICAL APPROACH
THE HISTORICAL DEVELOPMENT OF ALTERNATIVE
DISPUTE RESOLUTION IN SOUTH AFRICA: FROM
COLONIAL ROOTS TO MODERN MEDIATION AND
ARBITRATION
1. Introduction
Dispute resolution has always been central to the administration of
justice in South Africa. Traditionally, litigation has been the
dominant mechanism for settling disputes, shaped by Roman-Dutch
law and English procedural rules inherited during the colonial and
Union periods. However, litigation has long been criticised for being
costly, adversarial, inaccessible, and time-consuming. This reality
has encouraged the gradual introduction of alternative dispute
resolution (ADR) mechanisms.
Historically, ADR in South Africa developed in different phases.
Arbitration was first entrenched in labour relations and commercial
disputes under colonial and Union-era legislation, such as the
Industrial Conciliation Act of 1924. With the advent of apartheid,
arbitration was extended in the context of labour disputes but
limited in scope due to political exclusion. Following the democratic
transition in 1994, ADR gained constitutional significance under
section 34 of the Constitution, which recognises both the right of
, access to courts and the promotion of other forms of dispute
resolution.
Key milestones include the Labour Relations Act 66 of 1995,
which established the Commission for Conciliation, Mediation and
Arbitration (CCMA); the Children’s Act 38 of 2005, which
promotes mediation in family disputes; and the introduction of Rule
41A of the Uniform Rules of Court in 2020, which made
mediation a mandatory consideration in civil litigation. Judicial
initiatives, such as judgments in Brownlee v Brownlee¹ and
Mphahlele v FNB², have also underscored the importance of ADR.
Most recently, the South African Law Reform Commission
(SALRC) has released proposals for a Mediation Act, signalling a
consolidation of ADR into mainstream justice.
This proposal uses a historical approach to trace ADR’s evolution
in South Africa, evaluating whether these developments have
addressed the limitations of litigation and whether ADR has become
a viable alternative for justice delivery.
2. Problem statement
Despite the long history of ADR in South Africa, the system
remains fragmented. Arbitration has been well-established in labour
and commercial disputes, while mediation has developed
inconsistently across family, civil, and criminal matters. Court-
annexed mediation, introduced in 2014 and reinforced by Rule 41A
in 2020, has faced challenges such as low public awareness, lack of
resources, and judicial reluctance.
The problem is that while ADR has made significant strides, it is
still not systematically integrated across all sectors of the justice
Semester 2 2025 – DUE September 2025; 100% correct
solutions and explanations.
BOTH HISTORICAL AND HISTORICAL APPROACH
PROVIDED
HISTORICAL APPROACH
THE HISTORICAL DEVELOPMENT OF ALTERNATIVE
DISPUTE RESOLUTION IN SOUTH AFRICA: FROM
COLONIAL ROOTS TO MODERN MEDIATION AND
ARBITRATION
1. Introduction
Dispute resolution has always been central to the administration of
justice in South Africa. Traditionally, litigation has been the
dominant mechanism for settling disputes, shaped by Roman-Dutch
law and English procedural rules inherited during the colonial and
Union periods. However, litigation has long been criticised for being
costly, adversarial, inaccessible, and time-consuming. This reality
has encouraged the gradual introduction of alternative dispute
resolution (ADR) mechanisms.
Historically, ADR in South Africa developed in different phases.
Arbitration was first entrenched in labour relations and commercial
disputes under colonial and Union-era legislation, such as the
Industrial Conciliation Act of 1924. With the advent of apartheid,
arbitration was extended in the context of labour disputes but
limited in scope due to political exclusion. Following the democratic
transition in 1994, ADR gained constitutional significance under
section 34 of the Constitution, which recognises both the right of
, access to courts and the promotion of other forms of dispute
resolution.
Key milestones include the Labour Relations Act 66 of 1995,
which established the Commission for Conciliation, Mediation and
Arbitration (CCMA); the Children’s Act 38 of 2005, which
promotes mediation in family disputes; and the introduction of Rule
41A of the Uniform Rules of Court in 2020, which made
mediation a mandatory consideration in civil litigation. Judicial
initiatives, such as judgments in Brownlee v Brownlee¹ and
Mphahlele v FNB², have also underscored the importance of ADR.
Most recently, the South African Law Reform Commission
(SALRC) has released proposals for a Mediation Act, signalling a
consolidation of ADR into mainstream justice.
This proposal uses a historical approach to trace ADR’s evolution
in South Africa, evaluating whether these developments have
addressed the limitations of litigation and whether ADR has become
a viable alternative for justice delivery.
2. Problem statement
Despite the long history of ADR in South Africa, the system
remains fragmented. Arbitration has been well-established in labour
and commercial disputes, while mediation has developed
inconsistently across family, civil, and criminal matters. Court-
annexed mediation, introduced in 2014 and reinforced by Rule 41A
in 2020, has faced challenges such as low public awareness, lack of
resources, and judicial reluctance.
The problem is that while ADR has made significant strides, it is
still not systematically integrated across all sectors of the justice
