Authored by Jakop Mphofu and Sanjana Kapoor.
In May 2026, the high court held that a refusal to engage meaningfully in court-annexed mediation under Rule 41A constitutes non-compliance and may justify a punitive costs order, even where the dispute is not suitable for mediation.
The dispute arose from a damages claim brought by co-executors of a deceased estate against a curator bonis. The issue concerned whether the curator had authority to remove a beneficiary nomination on a living annuity, and whether that conduct caused financial loss. The applicants initiated the Rule 41A process, proposed mediators, and delivered an amplified notice setting out why mediation was appropriate. The respondent refused to participate, relying on the pending constitutional challenge to the mediation framework and asserting that the matter required adjudication.
The court considered the Mediation Directive and Protocol applicable in the Gauteng Division, which require structured and substantive engagement with the mediation process. The respondent’s refusal was found to be non-compliant. The court held that the existence of a pending constitutional challenge did not suspend the application of Rule 41A or the Protocol, which remained binding until set aside by a competent court.
The respondent further failed to provide case specific reasons for refusing mediation. General assertions that the matter was unsuitable and would result in wasted costs were subjective and inadequate. The protocol requires parties to engage with the process and, where necessary, utilising mechanisms to address disputes about suitability. These include the preparation of a joint minute or referral to an umpire. The respondent’s failure to use these mechanisms reinforced the finding of non-compliance.
Despite this, the court considered whether mediation would assist in resolving the dispute. It found that the matter turned on a narrow legal question concerning the scope of the curator’s authority, with limited factual disagreement. In those circumstances, there was little scope for compromise or negotiated resolution. On costs, however, the court drew a clear distinction between the suitability of mediation and compliance with the process. It held that the respondent’s sustained refusal to engage with the Rule 41A framework caused unnecessary delay and expense. Even where a matter may be unsuitable for mediation, parties are required to comply with the procedural framework and engage in good faith. The failure to do so warranted costs on an attorney and client scale.
This judgment reinforces that Rule 41A imposes substantive procedural obligations. A refusal to participate must be supported by clear, case‑specific reasons and proper engagement with the framework. Failure to do so will result in adverse cost consequences, even where the dispute is not suitable for mediation.
Timmins N.O. and Another v Smith and Another (2020_27641) [2026] ZAGPJHC 583 (29 May 2026)