Authored By: Mbalenhle
University of South Africa
Introduction
In South Africa, Alternative Dispute Resolution (ADR) mechanisms such as mediation, arbitration, negotiation, and plea bargaining have increasingly gained prominence as more accessible, cost-effective and efficient alternatives to traditional litigation in both civil and criminal justice systems. Within criminal proceedings, ADR notably manifests through plea and sentence agreements governed by section 105A of the Criminal Procedure Act 51 of 1977, enabling prosecutors and legally represented accused persons to negotiate guilty pleas and appropriate sentencing outcomes, thereby avoiding the uncertainties and resource demands of trial proceedings. Section 105A permits such agreements only when the prosecutor is duly authorised in writing by the National Director of Public Prosecutions and the accused is legally represented. The agreement must be in writing, detail the full terms (including factual admissions and sentencing proposals), and be disclosed in court, where a judge ensures compliance with procedural safeguards before accepting the plea. These safeguards include verifying that the accused acted freely and voluntarily, understood their rights, and that all formal consultations (for instance, with the investigating officer and, where appropriate, the complainant) were carried out. With the introduction of section 105A in or around 2001, South Africa shifted from informal plea discussions to a formalized statutory regime.
On the civil justice front, the South African Law Reform Commission has long advocated for the integration of ADR into formal dispute resolution framework. As early as 1997, the commission promoted mechanisms such as arbitration, independent third-party determination, mediation, and negotiation each relying on litigation or negotiation competencies as viable means to enhance access to, and the efficacy of, civil justice delivery. Among these, mediation is uniquely non-adversarial, aligning more closely with negotiation principles. The commission recommended embedding ADR within the court structures, so that if one method fails, parties may adopt another, with litigation remaining a final recourse. Civil procedure in South Africa remains adversarial in nature, characterized by formal rules aimed at removing disputes and structuring interactions between parties mediated through legal representatives. Yet, the modern trend both globally and domestically recognises that litigation may not always be the most appropriate or efficient forum for dispute resolution. Instead, ADR can offer more flexible and participant-centered procedures adapted to particular disputes, reducing formality and legalistic complexity. Thus, this study traces the historical trajectory of ADR in South African civil and criminal justice systems examining how legislative innovation, institutional reforms, judicial oversight, and doctrinal scholarship have collectively shaped the evolving landscape of ADR. The analysis will critically evaluate whether ADR, in its various forms, genuinely improves accessibility, affordability, and efficiency without compromising fairness or procedural integrity.
Problem statements
Although Alternative Dispute Resolution (ADR) has been recognised in South Africa as an important mechanism for enhancing access to justice, it’s integration into both civil and criminal justice remains uneven and fraught with challenges. In civil disputes, despite the South African Law Reform Commission’s recommendations since 1997 and the later introduction of court-annexed mediation, litigation still dominates, and ADR is often under-utilized due to limited awareness, lack of institutional support, and resistance from legal practitioners accustomed to adversarial processes. Similarly, in criminal matters, while plea and sentence agreements under section 105A of the Criminal Procedure Act 51 of 1977 have formalised negotiated justice, concerns persist regarding transparency, voluntariness, and the protection of accused person’s constitutional rights. This creates a tension between the theoretical promise of ADR efficiency, affordability, and accessibility and its practical implementation in South Africa’s justice system. The problem, therefore, lies in understanding to what extent historical developments, legislative reforms, and judicial initiatives have successfully embedded ADR as a credible alternative to litigation in South Africa, and whether further reform is needed to address shortcomings in both civil and criminal contexts.
Problem question
- How has the law relating to ADR (particularly mediation and arbitration) developed in South Africa from 1997 to the present?
- What role have case law, legislation, and the South African Law Reform Commission played I n shaping the current ADR framework?
- To what extent has ADR (such as mediation and arbitration) been effectively integrated into the civil justice system?
- What are the barriers to greater adoption of ADR in civil disputes, despite judicial initiatives such as court-annexed mediation and specialised courts?
Hypothesis
The formalization of plea bargaining in South Africa through section 105A of the Criminal Procedure Act 51 of 1977, inserted by the Criminal Procedure Second Amendment Act 62 of 2001, represents an attempt to codify and regulate a long-standing informal practice. The statutory scheme seeks to enhance efficiency and fairness by prescribing mandatory safeguards such as written agreements, authorization of prosecutors, legal representation for the accused, judicial oversight, and limited victim participation. However, the process remains constrained by its once-off application, its exclusion of unrepresented accused, and its reliance on prosecutorial and judicial discretion. Judicial interpretations in cases such as Sassin [2003] 4 All SA 506 (NC), Wickham v Magistrate, Stellenbosch 2017 (1) SACR 209 (CC), Jansen v The State 2016 (1) SACR 377 (SCA), Armugga 2005 (2) SACR 259 (N), and De Koker 2010 (2) SACR 196 (WCC) illustrate both the benefits and limitations of plea bargaining: while it can reduce trial delays and resource burdens, it also risks undermining voluntariness, equality, and procedural safeguards if not strictly monitored. Therefore, the hypothesis is that section 105A plea bargaining, though a valuable ADR mechanism in criminal justice, has not yet fully separated the tension between efficiency and the protection of constitutional rights.
The increasing statutory incorporation of Alternative Dispute Resolution (ADR) in South Africa through mechanisms such as the compulsory referral of labour disputes to the Commission for Conciliation, Mediation and Arbitration (CCMA) under the Labour Relations Act 66 of 1995; mandatory mediation in family law matters under the Children’s Act 38 of 2005; the mediation framework established by the Short Process Courts and Mediation in Certain Civil Cases Act 103 of 1991; and ADR provisions in statutes such as the Consumer Protection Act 68 of 2008, the National Credit Act 34 of 2005, the Companies Act 71 of 2008, and the Sectional Titles Schemes Management Act 8 of 2011 demonstrates a policy shift towards embedding ADR as a complement to litigation. Judicial decisions, such as Van den Berg v Le Roux 2003 (3) SA 499 (H) and Townsend-Turner and Another v Morrow 2004 (2) SA 32 (C), further reinforce the obligation of parties to consider mediation before resorting to the courts. Alongside statutory ombuds institutions (e.g., the Pension Funds Adjudicator under the Pension Funds Act 24 of 1956 and the Tax Ombudsman) and private-sector ombuds in the financial services industry, ADR has become a central mechanism to facilitate access to justice, reduce costs, and alleviate congested court rolls. Therefore, the hypothesis is that statutory and judicially mandated ADR has the potential to enhance access to justice in South Africa by providing affordable, efficient, and flexible dispute resolution mechanisms, particularly in areas such as labour, family, consumer, and financial disputes, thereby complementing the formal court system.
Points of departure and assumptions
Section 105A (1)(a) of the Criminal Procedure Act 51 of 1977 is the empowering provision that allows prosecutors to negotiate and enter into a plea and sentence agreement. It is implicit in the provision that there must be a negotiation between the prosecution and the defence. The effect of section 105A is that as many as five different parties may be part of the process. They are the prosecutor; The accused and his or her lawyer (if one has been appointed); The investigating officer; The complainant (with or without his or her representative) ; And the judge or magistrate in whose court the agreement is to be put into effect. The legal requirements for a section 105A agreement are numerous and they are technical. It will suffice to highlight some of them in order to demonstrate that the negotiation of a plea and sentence agreement corresponds in some ways with negotiations conducted by lawyers outside the criminal sphere while differing from it in others. Note the following: A plea and sentence agreement may only be concluded by a prosecutor who has been authorised in writing by the National Director of Public Prosecutions (section 105A(1)(a)). The accused must be legally represented (section 105A(1)(a)). The agreement must be negotiated and entered into before the accused has pleaded to the charge (section 105A(1)(a)). So far as the content of the agreement is concerned, the accused must plead guilty to the charge and must be convicted. The agreement must include the sentence to be imposed, which could include an award for compensation in terms of section 300 of the Act (section 105A(1)(a)(i) and (ii)). The agreement must state the substantial facts of the matter, meaning that it must cover all the legal elements (facta probanda) of the offence concerned (section 105A(2)(b)). The prosecutor must consult the investigating officer (section 105A(1)(b)(i) and must afford the complainant or his or her representative the opportunity to make representations to the prosecutor regarding the content of the agreement and the inclusion of a condition relating to compensation or service instead of compensation for involving damage (section 105A(1)(b)(ii)). Prosecutors should apply the protocols and procedures suggested for interviews with the complainant and in the case of sex crimes should be particularly careful to put the complainant before concluding the plea and sentence agreement. The decision whether to conclude the agreement is that of the prosecutor and not of the complainant or the investigating officer. The remaining provisions of the section deal with the recording and implementation of the plea and sentencing agreement and are not directly relevant to the subject matter of this chapter. A prosecutor who has been authorised in writing to negotiate and enter into a plea and sentence agreement will have to employ the following skills discussed in this book:
- Conduct a fact analysis to determine what charge or charges the facts and evidence support. Discuss with the investigating officer and with the complainant or his or her representative.
- Advise and counsel the investigating officer and the complainant. Negotiate with the lawyer representing the accused. Reduce the plea and sentence agreement to writing. Represent the prosecution at the hearing when the plea and sentence agreement is put to the court for implementation.
- Section 105A has detailed provisions and this discussion should not be used as a substitute for studying its provisions. Note also that the National Director of Public Prosecutions has issued directives to be observed by prosecutors in the application of section 105A.
My second departure arbitration. Arbitration can take various specialised forms aimed at increasing efficiency and encouraging settlement. Last-offer arbitration (also known as “pendulum” or “baseball” arbitration) requires each party to submit a final offer, with the arbitrator selecting the most reasonable one, thereby rewarding moderation and narrowing disputes. Expedited arbitration accelerates the process by relaxing evidentiary rules and shortening timelines for document exchange. Documents-only arbitration relies exclusively on written submissions without oral evidence, making it suitable where facts are largely uncontested and only issues of interpretation remain. Arbitration involves an independent third party the arbitrator who functions similarly to a judge by hearing evidence and argument and issuing a decision, known as an award, based on the merits of the dispute. Arbitration is regulated by the terms of Arbitration Act 42 of 1965. Although arbitration resembles formal court proceedings, it remains an alternative to the public court system envisaged in section 34 of the Constitution, as it is conducted outside traditional courts. Under section 31(1) of the Arbitration Act, a party may apply to the High Court to have an arbitration award made an order of court, which can then be enforced in the same manner as any civil judgment. Arbitrators themselves, however, do not have general powers to enforce awards. In Telcordia Technologies Inc v Telkom SA Ltd [2007] ZASCA 105; 2008 (2) SA 481 (SCA), the Supreme Court of Appeal emphasised that courts must respect the principle of party autonomy when considering whether to confirm or set aside arbitral awards.
Arbitration – Arbitration is a process used to resolve a disagreement without going to court. Arbitration is sometimes mandatory, but it is primarily employed due to a clause in the contract between the parties involved in the dispute. The contract may specify the identity of the arbitrator or the method for their appointment, as well as whether legal representation is permitted and which procedures will be followed. If there are no such contractual terms, the rules of the Arbitration Act 42 of 1965 will be applicable. If a party that has previously consented to arbitration files a lawsuit, the other party can request the court to pause the lawsuit until the arbitration process is finished.
Mediation- Mediation is essentially a form of negotiation with assistance. Mediation is aim to negotiation, but it occurs with the direction of a mediator. Its aim is to find consensus on a potential solution to the issue. The term mediation comes from the Latin word “mediare” which means to be in the middle. That accurately reflects the role of the mediator. The individual is an impartial person who helps the parties reach agreements that are acceptable to both sides in order to resolve their conflict. The mediator does not make decisions or provide judgments. The mediator acts as a facilitator who organizes the discussion, helps clarify each party’s perspectives, encourages them to consider different options, and assists them in reaching a solution that works for both sides.
Negotiation- A dispute can be settled by the conclusion of a contract called a compromise or settlement. A compromise is a contract by which an existing or potential dispute is resolved by the creation of new rights and obligations. When the new contract is concluded, it replaces the original rights and obligations that parties had, unless they agree otherwise. A compromise is usually reached by the process known as “negotiation”.
Determination by an independent third party or expert- Another way of resolving an issue between parties to a dispute is to submit it for determination to an independent third party or expert. Such an adjudicator may be from almost any discipline and does not have to be a lawyer. He or she may even be an official such as the Master of the High Court or the Registrar of the High Court. For example, the Registrar is frequently called upon to make binding rulings with regard to the amount to be given as security for costs under Rule 47. A question of law may be submitted to counsel for an opinion under the provisions of the Arbitration Act 42 of 1965 or independently of the Act. As in the case of arbitration, the person whose determination is sought, has no jurisdiction beyond answering the question put to him or her.
Description of proposed research method
This study will adopt a qualitative, doctrinal legal research methodology, complemented by a limited comparative and policy-oriented approach. The primary aim is to analyse the historical and contemporary development of Alternative Dispute Resolution (ADR) in South Africa, with a focus on mediation and arbitration in both civil and criminal justice contexts. Primary sources will include legislation (e.g. Criminal Procedure Act 51 of 1977, Arbitration Act 42 of 1965, and recent law reform proposals such as the draft Mediation Bill), case law from South African courts, and official reports of the South African Law Reform Commission (SALRC). Secondary sources will consist of academic books, peer-reviewed journal articles, theses, dissertations, and commentary by legal scholars, which will assist in interpreting and evaluating the development, application, and effectiveness of ADR mechanisms.
Conclusion
The evolution of Alternative Dispute Resolution (ADR) in South Africa reflects a broader international recognition that litigation is not always the most effective or appropriate means of resolving disputes. Both civil and criminal justice systems have undergone significant transformation, with mechanisms such as mediation, arbitration, plea bargaining, and plea and sentence agreements increasingly incorporated into the legal framework. The introduction of section 105A of the Criminal Procedure Act 51 of 1977 formalised negotiated pleas, while the recommendations of the South African Law Reform Commission (SALRC), beginning in 1997, laid the foundation for greater integration of ADR into civil practice. Judicial initiatives such as court-annexed mediation and the establishment of specialised courts further underscore a policy commitment to reducing population, enhancing access to justice, and promoting efficiency. While ADR has clear advantages affordability, timeliness, flexibility, and participant empowerment its success depends on the development of professional skills, legal safeguards, and consistent institutional support. It remains essential to strike a balance between the efficiency of ADR and the constitutional guarantees of fairness, equality, and due process. This research will therefore critically assess whether the historical and contemporary developments in ADR have achieved their intended purpose of creating a justice system that is both accessible and effective, and whether further reform, such as the proposed Mediation Act, is required to entrench ADR as a complementary and reliable component of South Africa’s legal landscape.
Bibliography
Books
Marnewick CG Litigation Skills of South African Lawyers 3rd ed (Lexis Nexis 2012)
Pete S, Hulme D, Du Plessis M, Palmer R, Sibanda O and Palmer T Civil procedure: a practical guide 3ed (2017) (Oxford University Press)
Joubert JJ (ed.) Criminal Procedure Handbook, published by Juta
Statute
Criminal Procedure Act 51 of 1977
Cases
Sassin [2003] 4 All SA 506 (NC)
Wickham v Magistrate, Stellenbosch 2017 (1) SACR 209 (CC)
Jansen v The State 2016 (1) SACR 377 (SCA)
Armugga 2005 (2) SACR 259 (N), and De Koker 2010 (2) SACR 196 (WCC)
Telcordia Technologies Inc v Telkom SA Ltd [2007] ZASCA 105; 2008 (2) SA 481 (SCA)
