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Mediation has become an integral part of the civil litigation process in the Gauteng division. The Mediation Protocol ("the Protocol") has elevated the procedural significance of Rule 41A, and with it, the risks for practitioners who do not engage with its requirements carefully. Where a Rule 41A notice may once have been considered to be a routine step, the Protocol's recent amplification has clarified when, how and on what basis a party may oppose referral to mediation without being labelled "delinquent".
Recent guidance from the Johannesburg High Court in Brondani v Brondani (2021/52977) [2025] ZAGPJHC 1157 (17 November 2025) directly tackles two main points of previous ambiguity in the Protocol: paragraph 4.5.1, regarding the acceptance or opposition to mediation in the initial Rule 41A notice, and paragraph 4.7, which treats notices as irregular if they reject mediation without 'cogent reasons', a term that the Protocol does not define. The judgment sheds some light on potential cogent reasons, but raises the bar for bypassing mediation in practice.
BRONDANI V BRONDANI
The Plaintiff claimed ZAR1 million in damages for an alleged assault. The Defendant counterclaimed for ZAR2.5 million and opposed the Plaintiff's request for mediation under the Protocol. The Plaintiff argued that the Defendant's Rule 41A notice was irregular for failing to comply with paragraphs 4.6.2 to 4.6.2.8. The Defendant's notice, filed under Rule 41A(2)(b), contended that mediation would be futile because, on various occasions, the parties had attempted to settle the matter to no avail, and therefore taking the matter to mediation would end up wasting costs for both parties since the mediator would not be able to make determinations as to the cause of the assault nor who the instigator was.
The court rejected the Plaintiff's claim of delinquency. In interpreting paragraphs 4.7.1.1 to 4.7.1.2.2 of the Protocol, it held that the Defendant's notice set out cogent reasons that were sufficiently tailored to the facts. Crucially, the court accepted that a notice can be compliant and not irregular if it does not traverse every item listed in paragraphs 4.6.2 and 4.8.3, provided it articulates specific reasons related to the matter for opposing mediation.
Notwithstanding that finding, the court declined to excuse the Defendant from mediation. It emphasised the purpose of the Protocol in alleviating congestion on the court rolls and enhancing access to justice. The court recognised that parties who believe that their dispute cannot settle often default to litigation; however, it underscored the mediator's role in reframing issues, asking questions to allow the parties to understand one another, and facilitating compromise especially when parties cannot see eye to eye because they are acting against one another. The mediator is there to help the parties in good faith identify solutions in order to prevent a win-lose situation.
On that basis, the court held that objections based on subjectivity, prior failed settlement discussions, cost concerns or the mediator's lack of adjudicative authority does not amount to 'exceptional circumstances'. To effectively object to mediation a party must demonstrate now not only cogent reasons, but also 'exceptional circumstances' which is not provided for under the Protocol. This judgment shows that a party cannot merely object to the referral of the matter to mediation, its objection must raise exceptional circumstances.
Practical implications for practitioners
The decision resolves one ambiguity in relation to potential delinquency, but introduces another in relation to what may constitute exceptional circumstances. It clarifies that a Rule 41A notice opposing mediation is not per se irregular if it does provide for cogent reasons like cost concerns or previous failed attempts. At the same time, the judgement confirms that even cogent reasons are generally insufficient to avoid the mediation obligation. In other words, cogency saves the notice; but it does not secure an exemption unless there are also exceptional circumstances.
Conclusion
The ambiguity has not been settled, practitioners will now need to ensure that their notices have both cogent reasons and exceptional circumstances if their clients do not want to proceed to mediation. Without an explanation as to what 'exceptional circumstances' entails it seems that further litigation may be on the horizon to try to clarify exactly what this means. This judgement therefore ties up a loose end regarding cogent reasons, while on the other hand leaves a new question unanswered and open to further interpretation.
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