, HISTORICAL RESEARCH APPROACH
Title: The Evolution and Efficacy of Alternative Dispute Resolution in South Africa: A Historical
Analysis of its Integration into the Legal Landscape (1994-Present)
1. Introduction
The South African legal system, inherited from its colonial and apartheid past, was historically
characterised by a rigid adherence to formal, adversarial litigation. This often resulted in a process
that was prohibitively expensive, slow, and inaccessible to the majority of the population, thereby
perpetuating a legacy of inequality before the law. However, the dawn of constitutional democracy
in 1994 marked a pivotal turning point. The new constitutional dispensation, founded on the values
of human dignity, the achievement of equality, and the advancement of human rights and
freedoms (s 1 of the Constitution of the Republic of South Africa, 1996), necessitated a
fundamental re-imagining of how justice is administered.
This research proposal posits that the past three decades have witnessed a deliberate and
significant paradigm shift in South Africa, moving from a purely litigation-centric model towards the
embrace of Alternative Dispute Resolution (ADR) mechanisms. This shift is not merely a procedural
change but a constitutional imperative, aimed at making justice more accessible, cost-effective,
and responsive to the needs of a transforming society. ADR, encompassing mediation, arbitration,
conciliation, and restorative justice practices, offers a complementary pathway to justice that can
alleviate the burden on an overstretched court system and empower parties to reach their own
solutions.
The primary aim of this research is to trace the historical development of ADR in South Africa from
1994 to the present day. It will adopt a historical research approach to critically analyse the key
legal, institutional, and judicial drivers behind this evolution. The study will argue that the
integration of ADR has been a progressive, though sometimes fragmented, journey driven by
legislative intervention, innovative judicial policy, and the recommendations of law reform bodies.
The research will be guided by the following key questions:
What were the primary socio-legal catalysts in the post-apartheid era that created the impetus
for the adoption of ADR?
How have specific pieces of legislation (e.g., the Arbitration Act of 1965, the Labour Relations
Act 66 of 1995, the Children’s Act 38 of 2005) and law reform commission reports historically
shaped the framework for different ADR mechanisms?
How has the judiciary, through both case law and institutional initiatives (such as court-annexed
mediation and the establishment of specialised commercial courts), actively promoted and
normalised the use of ADR?
What has been the role of scholarly commentary in interpreting, criticising, and guiding the
development of ADR principles within the South African context?
,By examining historical legislation, pivotal case law, South African Law Reform Commission reports,
and academic scholarship, this research will provide a comprehensive historical narrative of ADR’s
journey from the margins to the mainstream of South African law. It will conclude by evaluating the
successes and persistent challenges of this integration, offering a historically-informed perspective
on the future of dispute resolution in the country.
This introduction sets the stage for a detailed historical analysis, which will be elaborated upon in
the subsequent chapters covering the literature review, methodology, and historical chronology of
ADR in South Africa.
2. Problem Statement
The constitutional promise of access to justice for all, as enshrined in Section 34 of the Constitution
of the Republic of South Africa, 1996, faces a formidable obstacle: a crisis of efficiency within the
traditional court system. This crisis is manifested in pervasive court backlogs, protracted delays in
litigation, and exorbitant legal costs, which collectively render the formal adjudicative process
inaccessible and impractical for many South Africans (SALC, 2017; Freedman & Raymer, 2019).
While the embrace of Alternative Dispute Resolution (ADR) is widely touted as a critical solution to
this crisis, its integration into the South African legal framework remains incomplete, inconsistent,
and inadequately understood.
The core problem this research addresses is the disconnect between the recognised potential of
ADR and its effective, coherent, and uniform implementation within the South African justice
system. Despite significant developments, such as the recent proposal for a dedicated Mediation
Act by the South African Law Reform Commission (SALRC, 2021), the regulatory landscape is
fragmented. ADR is governed by a patchwork of statutes—from the outdated Arbitration Act 42 of
1965 to sector-specific acts like the Labour Relations Act 66 of 1995 and the Children’s Act 38 of
2005—leading to a lack of standardised procedures, ethical guidelines, and enforcement
mechanisms across different legal domains (Bhana, 2019).
Furthermore, the role of the judiciary in promoting ADR, while increasingly active, has been
ambivalent and at times contradictory. Pioneering judicial initiatives, such as court-annexed
mediation programmes in Gauteng and Kwazulu-Natal and the practice note directives in the
specialised Commercial Courts, demonstrate a top-down drive to mainstream ADR (Malan, 2018).
However, this is countered by a persistent undercurrent of judicial caution, as seen in cases like
Brownlee v Brownlee 2019 (1) SA 592 (GJ), which highlighted concerns about power imbalances in
mediation, and Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529
(CC), which, while upholding arbitration agreements, reaffirmed the courts' supervisory jurisdiction.
This judicial duality creates uncertainty for legal practitioners and litigants regarding the finality and
legitimacy of ADR outcomes.
, A significant gap in the current literature is a comprehensive historical analysis that systematically
traces the evolution of this complex and sometimes contradictory journey. While numerous
scholarly articles examine specific ADR mechanisms in isolation (e.g., arbitration in commercial
matters or mediation in family law), there is a lack of research that synthesises the historical
interplay between legislative reform, judicial policy, and law reform recommendations from the
foundational year of 1994 to the present. This historical context is crucial for understanding why
the current system is fragmented and for formulating effective, evidence-based recommendations
for a more cohesive and effective ADR framework.
Therefore, this research seeks to investigate the following problem: How has the historical
development of ADR in South Africa since 1994, shaped by legislation, case law, and law reform
efforts, both facilitated and hindered its establishment as a viable, coherent, and universally
accessible alternative to traditional litigation, and what lessons does this history provide for its
future development? By answering this, the study will address a critical gap in legal scholarship and
provide a historically-grounded foundation for future law reform.
3. Hypothesis
This research is guided by the following primary hypothesis:
The integration of Alternative Dispute Resolution (ADR) into the South African legal system since
1994 has been a progressive yet fragmented process, driven by constitutional imperatives and
practical necessity rather than a single, cohesive policy. This fragmented development, while
successful in establishing ADR as a recognised feature of the legal landscape, has resulted in a
framework marked by jurisdictional inconsistencies, judicial ambivalence, and uneven accessibility,
ultimately limiting its full potential to realise the constitutional right of access to justice.
This central hypothesis can be broken down into several subsidiary hypotheses:
The Constitutional Court's affirmation of the value of ADR in landmark cases (such as Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC)) provided the
crucial jurisprudential legitimacy for its development, but subsequent lower court
jurisprudence has revealed persistent tensions regarding judicial oversight and the
enforcement of ADR outcomes.
Legislative efforts to promote ADR have been reactive and sector-specific (e.g., Labour
Relations Act, Children’s Act) rather than holistic, creating a disjointed regulatory regime that
lacks universal standards and principles, a problem recently identified by the South African Law
Reform Commission (SALRC, 2021).
Judicial initiatives, such as the establishment of specialised courts and court-annexed mediation
programmes, have been effective in promoting ADR within specific jurisdictions (e.g., the
Gauteng Division of the High Court) but have inadvertently contributed to a "two-tier" system
where access to efficient ADR is dependent on geographic and socio-economic factors.
Title: The Evolution and Efficacy of Alternative Dispute Resolution in South Africa: A Historical
Analysis of its Integration into the Legal Landscape (1994-Present)
1. Introduction
The South African legal system, inherited from its colonial and apartheid past, was historically
characterised by a rigid adherence to formal, adversarial litigation. This often resulted in a process
that was prohibitively expensive, slow, and inaccessible to the majority of the population, thereby
perpetuating a legacy of inequality before the law. However, the dawn of constitutional democracy
in 1994 marked a pivotal turning point. The new constitutional dispensation, founded on the values
of human dignity, the achievement of equality, and the advancement of human rights and
freedoms (s 1 of the Constitution of the Republic of South Africa, 1996), necessitated a
fundamental re-imagining of how justice is administered.
This research proposal posits that the past three decades have witnessed a deliberate and
significant paradigm shift in South Africa, moving from a purely litigation-centric model towards the
embrace of Alternative Dispute Resolution (ADR) mechanisms. This shift is not merely a procedural
change but a constitutional imperative, aimed at making justice more accessible, cost-effective,
and responsive to the needs of a transforming society. ADR, encompassing mediation, arbitration,
conciliation, and restorative justice practices, offers a complementary pathway to justice that can
alleviate the burden on an overstretched court system and empower parties to reach their own
solutions.
The primary aim of this research is to trace the historical development of ADR in South Africa from
1994 to the present day. It will adopt a historical research approach to critically analyse the key
legal, institutional, and judicial drivers behind this evolution. The study will argue that the
integration of ADR has been a progressive, though sometimes fragmented, journey driven by
legislative intervention, innovative judicial policy, and the recommendations of law reform bodies.
The research will be guided by the following key questions:
What were the primary socio-legal catalysts in the post-apartheid era that created the impetus
for the adoption of ADR?
How have specific pieces of legislation (e.g., the Arbitration Act of 1965, the Labour Relations
Act 66 of 1995, the Children’s Act 38 of 2005) and law reform commission reports historically
shaped the framework for different ADR mechanisms?
How has the judiciary, through both case law and institutional initiatives (such as court-annexed
mediation and the establishment of specialised commercial courts), actively promoted and
normalised the use of ADR?
What has been the role of scholarly commentary in interpreting, criticising, and guiding the
development of ADR principles within the South African context?
,By examining historical legislation, pivotal case law, South African Law Reform Commission reports,
and academic scholarship, this research will provide a comprehensive historical narrative of ADR’s
journey from the margins to the mainstream of South African law. It will conclude by evaluating the
successes and persistent challenges of this integration, offering a historically-informed perspective
on the future of dispute resolution in the country.
This introduction sets the stage for a detailed historical analysis, which will be elaborated upon in
the subsequent chapters covering the literature review, methodology, and historical chronology of
ADR in South Africa.
2. Problem Statement
The constitutional promise of access to justice for all, as enshrined in Section 34 of the Constitution
of the Republic of South Africa, 1996, faces a formidable obstacle: a crisis of efficiency within the
traditional court system. This crisis is manifested in pervasive court backlogs, protracted delays in
litigation, and exorbitant legal costs, which collectively render the formal adjudicative process
inaccessible and impractical for many South Africans (SALC, 2017; Freedman & Raymer, 2019).
While the embrace of Alternative Dispute Resolution (ADR) is widely touted as a critical solution to
this crisis, its integration into the South African legal framework remains incomplete, inconsistent,
and inadequately understood.
The core problem this research addresses is the disconnect between the recognised potential of
ADR and its effective, coherent, and uniform implementation within the South African justice
system. Despite significant developments, such as the recent proposal for a dedicated Mediation
Act by the South African Law Reform Commission (SALRC, 2021), the regulatory landscape is
fragmented. ADR is governed by a patchwork of statutes—from the outdated Arbitration Act 42 of
1965 to sector-specific acts like the Labour Relations Act 66 of 1995 and the Children’s Act 38 of
2005—leading to a lack of standardised procedures, ethical guidelines, and enforcement
mechanisms across different legal domains (Bhana, 2019).
Furthermore, the role of the judiciary in promoting ADR, while increasingly active, has been
ambivalent and at times contradictory. Pioneering judicial initiatives, such as court-annexed
mediation programmes in Gauteng and Kwazulu-Natal and the practice note directives in the
specialised Commercial Courts, demonstrate a top-down drive to mainstream ADR (Malan, 2018).
However, this is countered by a persistent undercurrent of judicial caution, as seen in cases like
Brownlee v Brownlee 2019 (1) SA 592 (GJ), which highlighted concerns about power imbalances in
mediation, and Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529
(CC), which, while upholding arbitration agreements, reaffirmed the courts' supervisory jurisdiction.
This judicial duality creates uncertainty for legal practitioners and litigants regarding the finality and
legitimacy of ADR outcomes.
, A significant gap in the current literature is a comprehensive historical analysis that systematically
traces the evolution of this complex and sometimes contradictory journey. While numerous
scholarly articles examine specific ADR mechanisms in isolation (e.g., arbitration in commercial
matters or mediation in family law), there is a lack of research that synthesises the historical
interplay between legislative reform, judicial policy, and law reform recommendations from the
foundational year of 1994 to the present. This historical context is crucial for understanding why
the current system is fragmented and for formulating effective, evidence-based recommendations
for a more cohesive and effective ADR framework.
Therefore, this research seeks to investigate the following problem: How has the historical
development of ADR in South Africa since 1994, shaped by legislation, case law, and law reform
efforts, both facilitated and hindered its establishment as a viable, coherent, and universally
accessible alternative to traditional litigation, and what lessons does this history provide for its
future development? By answering this, the study will address a critical gap in legal scholarship and
provide a historically-grounded foundation for future law reform.
3. Hypothesis
This research is guided by the following primary hypothesis:
The integration of Alternative Dispute Resolution (ADR) into the South African legal system since
1994 has been a progressive yet fragmented process, driven by constitutional imperatives and
practical necessity rather than a single, cohesive policy. This fragmented development, while
successful in establishing ADR as a recognised feature of the legal landscape, has resulted in a
framework marked by jurisdictional inconsistencies, judicial ambivalence, and uneven accessibility,
ultimately limiting its full potential to realise the constitutional right of access to justice.
This central hypothesis can be broken down into several subsidiary hypotheses:
The Constitutional Court's affirmation of the value of ADR in landmark cases (such as Lufuno
Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC)) provided the
crucial jurisprudential legitimacy for its development, but subsequent lower court
jurisprudence has revealed persistent tensions regarding judicial oversight and the
enforcement of ADR outcomes.
Legislative efforts to promote ADR have been reactive and sector-specific (e.g., Labour
Relations Act, Children’s Act) rather than holistic, creating a disjointed regulatory regime that
lacks universal standards and principles, a problem recently identified by the South African Law
Reform Commission (SALRC, 2021).
Judicial initiatives, such as the establishment of specialised courts and court-annexed mediation
programmes, have been effective in promoting ADR within specific jurisdictions (e.g., the
Gauteng Division of the High Court) but have inadvertently contributed to a "two-tier" system
where access to efficient ADR is dependent on geographic and socio-economic factors.
