Should mediation in terms of rule 41A be mandatory?

June 1st, 2024
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Picture source: Getty/iStock

By Daniël Eloff

‘Who steals my purse steals trash. ‘Tis something, nothing;

“Twas mine, ‘tis his, and has been slave to thousands. But he that filches from me my good name robs me of that which not enriches him and makes me poor indeed’ – William Shakespeare Othello 3:3.

Balancing the value of one’s reputation, as expressed in Othello, and the right to freedom of speech remains the central consideration in all defamation litigation in South Africa (SA). SA has recently witnessed a marked increase in high profile defamation cases. Against this backdrop the now not-so-new r 41A could become a mechanism to achieving quicker and cheaper resolution in defamation cases (Hlatshwayo and Another v Road Accident Fund (MM) (unreported case no 3242/2019, 24-1-2023) (Legodi JP (Mphahlele DJP and Mashile J concurring)) at paras 204 – 205). Rule 41A processes encourage parties to mediate, offering a preliminary respite from the tempestuous tensions of protracted courtroom battles. The question in this article is whether rule 41A processes should be embraced as a mandatory requirement in defamation litigation.

Rule 41A was introduced to the Uniform Rules of Court with the intention of promoting alternative dispute resolution (ADR), specifically mediation, as a means of resolving disputes (P v O (GJ) (unreported case no 21264/2019, 30-9-2022) (Molahlehi J) at paras 19 – 20). Its voluntary nature allows parties to explore mediation willingly, without the imposition of a mandatory requirement. However, the application of r 41A in defamation cases raises intriguing questions about its effectiveness in balancing the scales between freedom of expression and the protection of reputation.

In considering the potential merits of making r 41A mandatory in defamation cases, a key consideration is the prospect of expeditious and cost-effective resolution. Defamation suits, often notorious for their protracted litigation timelines, could benefit from the streamlined efficiency offered by mandatory r 41A processes. Mediation, when mandated, could serve as a swift alternative, alleviating the burden on the court system and providing expedited relief to aggrieved parties. By incorporating a mandatory mediation step, parties might be encouraged to engage in a more constructive dialogue at an earlier stage, potentially fostering resolutions that might be elusive within the confines of protracted courtroom battles. This expedited resolution could not only benefit the litigants involved but also contribute to the broader efficiency and efficacy of the legal system (Grégor Wolter, Jac Marais, Andrew Molver and Renée Nienaber ‘South Africa’ in Jonathan Cotton The Dispute Resolution Review (London: Law Business Research Ltd 2016) (www.adams.africa, accessed 27-4-2024)).

Arguments for mandatory r 41A processes

Within the arena of legal debate surrounding r 41A processes in defamation cases, there are a number of compelling arguments in support of making r 41A processes mandatory in these cases (M Olivier The role of court-annexed mediation in providing access to justice in the resolution of commercial disputes (LLM dissertation, NWU, 2018) at 17 – 23).

Foremost among these arguments is the fact that it might lead to an expedited resolution. Defamation cases, notorious for how protracted they can become, may result in significant costs. Rule 41A processes if rendered obligatory, could offer a swift and efficient avenue for dispute resolution in defamation cases. By circumventing prolonged court proceedings, mediation could offer expeditious relief (Emily B Laidlaw ‘Re-Imagining Resolution of Online Defamation Disputes’ (2018) 56.1 Osgoode Hall Law Journal 162 (https://digitalcommons.osgoode.yorku.ca, accessed 27-4-2024)). This could alleviate the burden on an already overburdened court system, allowing aggrieved parties to find prompt justice and the peace of mind that comes with resolved court cases.

However, it is important to acknowledge the practical and real-world challenges surrounding the implementation of r 41A (whether it be mandatory or optional). In legal practice, this rule often faces neglect, with many attorneys either overlooking it completely or treating it as a mere box-checking exercise. Many legal practitioners serve and file notices objecting to mediation without providing comprehensive reasoning or explanations for this objection. This procedural oversight not only undermines the true spirit of r 41A but also diminishes its effectiveness in promoting meaningful ADR. Rather than treating it as a perfunctory task, attorneys should view it as a valuable opportunity to enhance the efficiency of defamation dispute resolution (Koetsioe and Others v Minister of Defence and Military Veterans and Others (GP) (unreported case no 12096/2021, 6-4-2021) (Davis J) at para 6.2). To address these issues, either legal practitioners should embrace a more nuanced and informed approach when engaging with r 41A or r 41A should be mandatory in defamation matters. The question then is, is it easier to change the minds of legal practitioners to view mediation as a valuable opportunity to enhance the efficiency of defamation dispute resolution or is it easier to change the rules of court to make it compulsory?

The second main argument in support of mandatory r 41A processes is the potential preservation of relationships. Defamation cases, by their very nature, unfurl acrimony and strain between disputing parties. Enforcing mandatory mediation increases the prospect of constructive dialogue and the ironing out of miscommunication. This forum, mandated by r 41A, could become a powerful mechanism for amicable resolutions, potentially rescuing relationships that would otherwise crumble under the weight of protracted litigation. In the face of mandatory mediation, parties are compelled to engage, fostering an environment where disputes are not only resolved but where strained relationships may be reconciled.

Lastly, mandatory mediation through r 41A could lead to more responsible expression and it could become an additional deterrent against frivolous defamation claims. It could likely lead to parties refraining from wielding defamation accusations recklessly or recklessly defaming others due to the addition of mandatory mediation as an extra hurdle to overcome. The public knowledge that mediation is an obligatory step may instil a further sense of caution, prompting parties to tread carefully in their expressions and accusations. This, in turn, could catalyse a culture of responsible communication, where baseless accusations and reckless speech find themselves shrouded in the deterrent shadow of r 41A being mandatory.

In summary, the arguments for mandatory mediation are all maybes. Maybe quicker results, maybe preserve relationships and maybe serve as a deterrent.

Arguments against mandatory r 41A processes

Foremost among the counterarguments against making r 41A mandatory is the flip side of the coin of ensuring more hesitancy when making defamation claims or potentially defamatory comments. The imposition of mandatory r 41A processes may potentially indirectly encroach on the constitutional right to freedom of expression. Mandatory mediation, as envisaged by a revised r 41A, could inadvertently cast a pall over the free exchange of ideas and speech because it introduces a compulsory step that mandates parties to engage in mediation before further pursuing litigation. The essence of freedom of expression is rooted in the unrestricted sharing of ideas, opinions, and information, and the imposition of mandatory mediation could be seen as an interference with this fundamental right. The concern deepens when considering the subjective nature of defamation claims and the potential chilling effect on free speech. Parties might hesitate to express controversial opinions or engage in robust discussions if they are aware that any dispute arising from their expressions will inevitably lead to mandatory mediation. This hesitancy could stifle open discourse and hinder the marketplace of ideas, which is a cornerstone of our democratic society (S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC)). Therefore, while the objective of r 41A is to facilitate resolution, its mandatory application raises valid questions about its compatibility with the cherished principle of freedom of expression.

A second salient argument against mandatory r 41A processes pivots on the complexity inherent in defamation cases. Mandating mediation might not be universally suitable, especially in cases where parties are entrenched in their positions, making compromise an elusive prospect. The intricate nature of defamation claims necessitates a more bespoke and flexible approach, one that accommodates the idiosyncrasies of each case rather than adhering to a rigid, one-size-fits-all mandatory mediation framework, much how the current r 41A reads, which requires parties to contemplate mediation but does not impose it as a mandatory step. Defamation cases frequently involve complex legal issues intertwined with intricate factual details, demanding a nuanced understanding of the context and nuances of each statement (M De Jong ‘A pragmatic look at mediation as an alternative to divorce litigation’ (2010) 3 TSAR 515 at 520 (uir.unisa.ac.za, accessed 27-4-2024)). The current r 41A encourages parties to consider mediation voluntarily, allowing for a case-by-case evaluation of whether ADR methods are appropriate. This flexibility enables parties to tailor their approach based on the specific circumstances of the defamation claim, accounting for the nuances and complexities inherent in such cases. Mandating mediation, on the other hand, could inadvertently force parties into a process that might not be conducive to the resolution of their specific dispute, potentially leading to ineffective outcomes and increased resistance to the overall mediation framework.

A third dimension to the critique is the potential for abuse inherent in mandatory r 41A processes. Parties may strategically deploy mediation as a tactical tool to stymie proceedings or gain a strategic advantage. This apprehension wherein rule 41A, designed to foster genuine attempts at resolution, could be manipulated into a procedural hurdle, undermining its essence, which goes against the notion that court procedures are purpose built to provide predictable and dependable mechanisms for dispute resolution (Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC)). The delicate equilibrium between promoting resolution and safeguarding against abuse thus becomes a considerable concern in evaluating the feasibility and practicability of mandating r 41A processes in defamation cases.

Striking a balance

Striking a judicious balance between the discordant rights and interests at play in defamation cases remains central in defamation cases (Khumalo and Others v Holomisa 2001 (8) BCLR 771 (CC) at para 39) and, therefore, central to determining whether changes to established court rules should be made. A better application and use of r 41A processes will be beneficial when it is not wielded as a compulsory mechanism but rather as a persuasive guide, steering disputing parties towards mediation.

Considering the challenges faced by the judiciary, such as overloaded court rolls, delays in obtaining court dates, and frequent administrative shortcomings, a more proactive approach to r 41A becomes increasingly pertinent. Rather than making mediation mandatory, the legal community should undergo a transformative change in mindset, embracing mediation as an integral and preferred method of dispute resolution. This shift aligns with the broader trend in Africa, where ADR methods gain traction due to their effectiveness in expediting justice, reducing costs, and alleviating the burden on traditional court systems (UK Ministry of Justice, Africa’s Growing Dispute Resolution Landscape, 2023 (https://aln.africa, accessed 27-4-2024)).

Encouraging a change in legal culture involves not only reimagining the role of r 41A but also fostering a mindset shift among legal practitioners, litigants, and the judiciary. Legal education should emphasise the benefits and nuances of mediation, instilling an understanding that choosing this alternative does not signal weakness but rather a commitment to a more efficient and collaborative resolution. Law firms and practitioners should actively incorporate mediation into their repertoire of skills, promoting it as a legitimate and powerful tool in their arsenal.

By transforming r 41A from a procedural checkbox into a cornerstone of legal practice, the legal community can harness the full potential of mediation, not just in defamation cases but across the spectrum of legal disputes.

Conclusion

In conclusion, while the idea of mandatory r 41A processes may seem like a pragmatic response to the challenges faced by the legal system, a more sustainable solution lies in reshaping the legal culture. Embracing mediation as an integral aspect of legal practice can alleviate the strain on the courts, reduce delays, and enhance access to justice. This shift towards a more collaborative and proactive approach reflects not only the changing dynamics within SA, but also aligns with the broader continental trend towards embracing ADR mechanisms. As legal practitioners navigate the evolving landscape, a comprehensive embrace of mediation stands poised to offer efficiency, cost-effectiveness, and harmonious dispute resolution within litigation.

Daniël Eloff LLB LLM (UP) PG Dip Human Rights Litigation (Wits) is a research fellow at Akademia.

This article was first published in De Rebus in 2024 (June) DR 24.

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