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Thinking of splitting up? Ask your lawyer about Rule 41 first

Rule 41 was passed by the High Court to encourage mediation and not the immediate course of litigation, which adds adds pressure onto an already strained court system.

Mediation is a round table discussion that can take place with or without an Attorney present for both parties in order to resolve a dispute.

It is said to be more affordable and work a lot faster. Mediation is the best option for preserving the relationship between all parties, this is particularly favourable when it comes to Family Law matters.

So explains Rushka Lee Pedro, an Alternative Dispute Resolution (ADR) practitioner who founded a Family Law Mediation Practice, Minor Impact.

In short, your legal representative must suggest you try mediation to settle your dispute before going to court. You do have the right to refuse mediation, and this must be formally documented before you can proceed with lodging your issue with the court.

A subsection of Rule 41 states that before a summons can be issued, a notice of agreeing or opposing mediation needs to be filed.

While this sounds like a reasonable course of action for all parties involved, she reveals that "Rule 41 has been in effect for one year now and it seems as though it’s still not being adhered to."

All legal practitioners have a deadline of September 1st 2021 to comply with Rule 41, failure to do so will result in the court declining to hear the matter.

Also read: Local divorce mentor on how to have the divorce talk with kids

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Consequences

While attorneys and lawyers may be tempted to withhold this information from their clients, either to retain their business or to increase their fee, there are consequences for legal professionals who fail to make this clear to their clients.

"In Case Law Brownlee vs Brownlee, both representative attorneys were penalised and their fees were capped as a result of not informing their clients that mediation could resolve their matter sooner and at a lower cost," Pedro says.

So make sure you know your options before you commit to a court appearance.


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Social Justice Foundation is a Non-profit Organisation with its head quarters in Cape Town, incorporated in terms of the laws of the Republic of SA.  It renders a variety of services to members of the public and government departments.  It functions with various cost centres, including the membership organisation structure with a subcommittee as its board for the benefit of its members.  The organisation is managed by its Board of Executive members and co-opted members. 

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Social Justice NPO is home to like-minded individuals with a shared vision and mission to address inequalities in society, various social justice issues by promoting access to justice, restoring justice to a deeply divided society, the rendering access to justice through alternative dispute resolution including mediation, restorative justice & peacemaking and the empowering individuals & communities through education and training.