LME3701
ASSIGNMENT 2 2025
DUE: SEPTEMBER 2025
SEMESTER 2 2025
,LME3701
RESEARCH TOPIC FOR SEMESTER 2 OF 2025
HISTORICAL APPROACH
TRACING THE EVOLUTION OF ALTERNATIVE DISPUTE RESOLUTION IN SOUTH
AFRICA
1. INTRODUCTION
Over the years, South Africa has moved towards new ways of resolving disputes that
do not always rely on the formal court system. This shift, known as Alternative
Dispute Resolution (ADR), includes methods such as mediation, arbitration, and plea
bargaining. These approaches aim to settle conflicts more fairly, quickly, and at a
lower cost than traditional litigation.1
South Africa’s legal system originally followed the English common law model, which
focused on strict court procedures2. However, challenges like high legal fees,
backlogged courts, and limited access for ordinary people made it clear that a
different approach was needed.3 In response, the Arbitration Act of 1965 laid the
foundation for ADR, and over time further reforms including court-annexed mediation
and specialised courts like the Commercial Court have strengthened its role.
Today, ADR continues to grow in importance. Proposals such as the introduction of a
Mediation Act highlight its recognition as a key part of justice in South Africa. This
study will examine how ADR developed through both laws and court cases, and how
it has evolved into an important complement to the traditional justice system.4
,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.
Even though Alternative Dispute Resolution (ADR) has existed in South Africa for
many years, its role within the justice system is still uneven and underdeveloped.
Arbitration continues to operate under the Arbitration Act of 1965, which has often
been criticised for being outdated and out of step with global arbitration standards.
Similarly, court-annexed mediation, introduced in 2014 under the Rules Board for
Courts of Law Act, has not gained wide support. This is largely due to low public
awareness, insufficient training for mediators, and weak institutional backing. 6
In criminal law, processes such as plea bargaining under section 105A of the
Criminal Procedure Act of 1977 show early elements of ADR in practice. However,
their use has raised concerns about fairness, transparency, and the protection of
victims’ rights.7 Recognising these shortcomings, the South African Law Reform
Commission has suggested the adoption of a dedicated Mediation Act to provide
clearer legislative guidance. 8
The challenge is therefore twofold: first, ADR in South Africa has grown in a
fragmented way without a unified legal and institutional framework; and second, the
legal culture’s traditional reliance on litigation continues to overshadow ADR,
reducing its ability to deliver accessible, timely, and affordable justice. To address
these challenges, a historical study of ADR is needed to show how its development
has shaped its current strengths and weaknesses.
, Hypothesis
This research assumes that ADR in South Africa reflects a gradual but incomplete
move away from dependence on litigation towards greater use of mediation,
arbitration, and other settlement mechanisms. The slow progress can be linked to a
fragmented legal history, including the outdated Arbitration Act of 1965 and the
limited implementation of court-annexed mediation, which have prevented ADR from
reaching its full potential as a cost-effective and accessible option. Although
constitutional guarantees, such as the right of access to justice under section 34,
provide a strong foundation, efforts by the courts and other institutions have not
always been well coordinated. It is therefore expected that the creation of a
dedicated Mediation Act, supported by stronger judicial and institutional commitment,
will be essential to standardise ADR practices and secure their place as reliable
alternatives to litigation in South Africa.9
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 2025
DUE: SEPTEMBER 2025
SEMESTER 2 2025
,LME3701
RESEARCH TOPIC FOR SEMESTER 2 OF 2025
HISTORICAL APPROACH
TRACING THE EVOLUTION OF ALTERNATIVE DISPUTE RESOLUTION IN SOUTH
AFRICA
1. INTRODUCTION
Over the years, South Africa has moved towards new ways of resolving disputes that
do not always rely on the formal court system. This shift, known as Alternative
Dispute Resolution (ADR), includes methods such as mediation, arbitration, and plea
bargaining. These approaches aim to settle conflicts more fairly, quickly, and at a
lower cost than traditional litigation.1
South Africa’s legal system originally followed the English common law model, which
focused on strict court procedures2. However, challenges like high legal fees,
backlogged courts, and limited access for ordinary people made it clear that a
different approach was needed.3 In response, the Arbitration Act of 1965 laid the
foundation for ADR, and over time further reforms including court-annexed mediation
and specialised courts like the Commercial Court have strengthened its role.
Today, ADR continues to grow in importance. Proposals such as the introduction of a
Mediation Act highlight its recognition as a key part of justice in South Africa. This
study will examine how ADR developed through both laws and court cases, and how
it has evolved into an important complement to the traditional justice system.4
,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.
Even though Alternative Dispute Resolution (ADR) has existed in South Africa for
many years, its role within the justice system is still uneven and underdeveloped.
Arbitration continues to operate under the Arbitration Act of 1965, which has often
been criticised for being outdated and out of step with global arbitration standards.
Similarly, court-annexed mediation, introduced in 2014 under the Rules Board for
Courts of Law Act, has not gained wide support. This is largely due to low public
awareness, insufficient training for mediators, and weak institutional backing. 6
In criminal law, processes such as plea bargaining under section 105A of the
Criminal Procedure Act of 1977 show early elements of ADR in practice. However,
their use has raised concerns about fairness, transparency, and the protection of
victims’ rights.7 Recognising these shortcomings, the South African Law Reform
Commission has suggested the adoption of a dedicated Mediation Act to provide
clearer legislative guidance. 8
The challenge is therefore twofold: first, ADR in South Africa has grown in a
fragmented way without a unified legal and institutional framework; and second, the
legal culture’s traditional reliance on litigation continues to overshadow ADR,
reducing its ability to deliver accessible, timely, and affordable justice. To address
these challenges, a historical study of ADR is needed to show how its development
has shaped its current strengths and weaknesses.
, Hypothesis
This research assumes that ADR in South Africa reflects a gradual but incomplete
move away from dependence on litigation towards greater use of mediation,
arbitration, and other settlement mechanisms. The slow progress can be linked to a
fragmented legal history, including the outdated Arbitration Act of 1965 and the
limited implementation of court-annexed mediation, which have prevented ADR from
reaching its full potential as a cost-effective and accessible option. Although
constitutional guarantees, such as the right of access to justice under section 34,
provide a strong foundation, efforts by the courts and other institutions have not
always been well coordinated. It is therefore expected that the creation of a
dedicated Mediation Act, supported by stronger judicial and institutional commitment,
will be essential to standardise ADR practices and secure their place as reliable
alternatives to litigation in South Africa.9
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).
