As the old adage goes, "The price for peace is paid upfront, that of quarrel afterwards."
These words resonate strongly in South Africa's current environmental context, where disputes over land contamination, water pollution, and scarcity of natural resources are both costly and damaging to communities and the environment. Traditional litigation is slow, costly, and often deepens divisions.
However, a shift to mediation, a process which involves a neutral third party to assist parties in reaching a voluntary agreement, may oftentimes be a more appropriate means of dispute resolution.
Mediation offers a faster, more cost-effective, and collaborative path to dispute resolution, yet remains underused despite being recognised in our legal framework. Recent reforms, especially in the Gauteng High Court, may mark a turning point toward more effective environmental dispute resolution by way of mediation.
Existing legal basis for environmental mediation
South Africa's environmental laws provide a strong foundation for mediation. The National Environmental Management Act ("NEMA") and the National Water Act ("NWA") both explicitly allow for mediation in environmental disputes.
NEMA enables any person or group to request a mediator for environmental conflicts, empowering a broad range of stakeholders to seek early, consensual solutions. The Minister or MEC can also refer disputes to mediation at any stage, showing a clear preference for negotiated outcomes.
Similarly, the NWA likewise allows for the Minister to refer water-related disputes to mediation or arbitration, which is especially important given the complexity of water issues. These statutes reflect a legislative intent to resolve environmental disputes through dialogue and cooperation rather than adversarial litigation.
The paradox of underutilisation
Despite this clear legal endorsement, mediation is rarely used in South African environmental law. This is surprising given the complexity of environmental disputes and the clear legislative encouragement for mediation.
Several factors could potentially explain this:
- many stakeholders lack awareness of mediation provisions or hold misconceptions about the process;
- there exists a deeply entrenched strong culture of litigation within the legal profession and government institutions;
- concerns exist that weaker parties without legal representation may be disadvantaged in mediation; and
- there are limited reported cases of successful environmental mediation, leading to further uncertainty about its effectiveness.
As a result, environmental disputes often drag on for years, consuming resources and entrenching hostility, while courts are oftentimes limited in the remedies they can provide. The underutilisation of mediation means missed opportunities for timely, creative, and sustainable solutions.
A new era – mandatory mediation in the Gauteng High Court
A significant recent development is the introduction of mandatory mediation in the Gauteng Division of the High Court. Since 2025, all civil trial matters, including environmental cases, must, as a first step, be subjected to mediation before a trial date can be set. This reform aims to institutionalise mediation as a fundamental part of the justice system.
Disputes are automatically referred to mediation first, with detailed rules ensuring good faith participation and confidentiality. If mediation fails, the case proceeds to trial, but the court is informed of the parties' conduct.
Enforcement measures, such as cost orders, encourage cooperation.
The main goal is to reduce long delays in trial scheduling, sometimes up to seven years, by resolving cases quicker and reserving court time for matters that truly need judicial intervention. This policy is seen as progressive and is supported by successful experiences in labour law and international practice.
Likely national roll-out
Mandatory mediation in Gauteng reflects a a broader trend toward making mediation a standard mechanism in South Africa's dispute resolution landscape.
The success of mediation in labour law, where it has been required for decades, shows its effectiveness in resolving disputes quickly and amicably.
The South African Law Reform Commission and a Draft Mediation Bill also support expanding mandatory mediation. Internationally, similar reforms have led to reduced costs and faster settlements.
If the Gauteng model succeeds, it is likely to be adopted in other courts and forums, helping to address court backlogs and improve access to justice nationwide.
Benefits of mediation
Mediation offers many well-documented benefits. It is efficient and cost-effective, often resolving disputes in weeks or months, resulting in significant savings on legal fees and court expenses.
Mediation is flexible, allowing parties to create solutions tailored to their needs, something courts cannot always do, which is particularly apt in complex environmental disputes with multiple interested and affected parties.
The process is collaborative and confidential, helping to preserve relationships and encourage open discussion. Mediation empowers parties by giving them control over the outcome, and it is accessible to a wide range of stakeholders, including those with fewer resources.
It can address not just the recognition of legal rights of the relevant parties but also underlying interests, leading to more holistic solutions.
Mediated agreements can be made court orders, ensuring they are binding and enforceable.
On a broader level, mediation supports sustainable, long-term solutions to environmental problems, empowers communities, and reduces social tension.
Addressing challenges
Despite its advantages, mediation also faces various challenges.
There is a risk that stronger parties could dominate mediation proceedings, but skilled mediators are trained to address power imbalances and ensure fairness.
Success also depends on parties participating in good faith as outlined in the Gauteng High Court protocols, which include consequences for non-cooperation.
The quality of mediators is crucial, and the Gauteng system includes standards for accreditation and training. The Department of Environment, Forestry and Fisheries already has a dedicated appointed panel of accredited and trained mediators.
Concerns about enforceability are addressed by allowing mediated agreements to become court orders, giving them the same legal force as judgments.
In South Africa, mediation is conducted on a confidential, without-prejudice basis. Consequently, any statements, documents, or admissions made during the process are inadmissible in later court proceedings, unless the parties expressly agree otherwise or disclosure is compelled by law. This protection enables parties to negotiate candidly, secure in the knowledge that their disclosures cannot be used against them in subsequent litigation.
Conclusion – paying the price for peace upfront
In the end, the path forward is clear. In environmental law, where disputes are complex and oftentimes urgent, mediation is a compelling solution. South Africa's legal framework supports mediation, and experience in other fields demonstrates its effectiveness. The Gauteng reforms offer a model for making mediation standard practice. By embracing mediation, South Africans can resolve environmental conflicts more efficiently and sustainably, building a more just and harmonious society.
This article's opening reference reminds us, mediation allows us to pay the price for peace early, avoiding the much greater costs of drawn-out conflict.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
