Mc Naught & Co

Communication is Key to Success




The single biggest problem in communication is the illusion that it has taken place. This has been a discovery in many trial matters run throughout South Africa, whereby it seems some matters heard before the court in civil proceedings could have easily been resolved at an earlier stage and should never have reached trial stage.


The stereotype is bad enough, some attorneys just wish to rack up fees in litigation matters and merely don’t care, and simply intend to draw out the matter for as long as possible.


The good news is even if this was the premise, there is now an amendment to the rules of conduct of proceedings in the High Court in many divisions of South Africa. Simply put the law will compel South Africans to declare that they have considered mediation as a solution to any forthcoming legal matter before commencing litigation steps and starting a lawsuit.


What is mediation?


As defined by the rules; means a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.


How does it work in practice?


Essentially in every new action or application proceeding, the plaintiff or applicant shall,serve on each defendant or respondent a notice indicating whether such plaintiff or applicant to or opposes referral of the dispute to mediation. The defendant or respondent will a notify the litigant whether as the defendant or respondent they agree to or opposes referral of the dispute to mediation.

The new rule requires the practising attorney to declare that they have advised their client to consider mediation as a means of attempting to resolve the dispute which is the subject of the proposed proceedings.


Consequences of ignoring the rule.


Attorneys and litigants who ignore this Rule will do so at their peril and may find themselves on the receiving end of a costs order.

The purpose of the new rule will is an effective step towards cutting down on legal processes and costs of legal representation.


The rule came into effect on the 9 March 2020.


We at Mc Naught and Company Incorporated, strive to give our clients the best legal experience and service and gladly welcome the new rule that has the best interest of the client and litigants. The mediation process promotes open communication and whilst not all cases maybe successful at mediation it surely is well favoured in the eyes of the court that every attempt was made to resolve the matter amicably. The new rule restores both integrity of the legal practitioner and the legal system.

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