REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2021-52977
DATE: 17 November 2025
In the matter between:
ROBERTO BRONDANI Plaintiff
and
MAURO BRONDANI Defendant
Neutral Citation: Brondani v Brondani (2021-52977) [2025] ZAGPJHC --- (17
November 2025)
Coram: Adams J
Heard: 11 November 2025
Delivered: 17 November 2025 – This judgment was handed down
electronically by circulation to the par ties' representatives by
email, by being uploaded to CaseLines and by release to SAFLII.
The date and time for hand -down is deemed to be 10:00 on
17 November 2025.
Summary: Civil procedure – court-annexed Mediation in the Gauteng High
Court – Uniform Rule of Court 41A, read with the Directive introducing

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Mandatory Mediation in the Gauteng Division and the Protocol thereto
(Including the amendments effected as and at 27 October 2025) – application
for an order compelling the defendant to cooperate in the appointment of a
mediator and in the furtherance of the mediation process in accordance –
Grounds on which mediation may be avoided – to be set out in an ‘amplified
rule 41A notice’ – cogent reasons (specifically and directly applicable to the
unique facts of the matter) should be proffered motivating why the matter
cannot be resolved, either in full or partially , by mediation – if rule 41A notice
does so, it is not an ‘irregular notice’ as per para 4.7 of the Protocol – however,
whether those grounds are valid to be decided upon by an Umpire or by the
Special Interlocutory Court –
Held that e xtreme acrimony between the parties and the fact that one of the
parties to the litigation believes subjectively that the mediation would be a waste
of time are not valid grounds on which referral to mediation should be refused –
to hold otherwise would defeat the purpose and the aim of court -annexed
mediation – a Mediator is an impartial third party who helps the parties identify
solutions and to understand each other – mediation is facilitative and the
Mediator facilitates a process of communication between the parties –
The defendant compelled to cooperate in the appointment of a mediator and in
the furtherance of the mediation process in accordance with the Mediation
Directive and the Protocol thereto.

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ORDER
(1) The defendant shall cooperate in the appointment of a mediator and in the
furtherance of the mediation process in accordance with the Mediation
Directive and the Protocol thereto.
(2) The defendant be and is hereby compelled to, within ten days from date of
this order, deliver an amplified rule 41A notice in terms of para 4.6 of the
Mediation Protocol, stipulating inter alia his preference for the
administration of the mediation process in accordance with paragraph 3.1
of the Mediation Protocol and the name and relevant details of one or
more proposed mediator(s).
(3) The plaintiff shall respond within ten days from date of delivery of the
defendant’s aforesaid amplified rule 41A notice , by delivering his further
amplified rule 41A notice in terms of 4.6.2 of the Protocol.
(4) Each party shall bear his own costs of this opposed interlocutory
application.
JUDGMENT
Adams J:
[1]. I refer to the parties as referred to in the main action in which the plaintiff
sues the defendant for damages allegedly resulting from an assault on the
person of the plaintiff by the defendant during December 2019. The quantum of
the damages claimed by the plaintiff is just over R1 million. The defendant has
preferred a counterclaim against the plaintiff for just over R2.5 million, alleging
that it was in fact the plaintiff who assaulted him, thus causing serious injuries to
his (defendant's) throat and voice box.

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[2]. Before me is an interlocutory application by the plaintiff, in terms of
Uniform Rule of Court 41A, read with the Directive introducing Mandatory
Mediation in the Gauteng Division and the Protocol thereto (Including the
amendments effected as and at 27 October 2025) . The application is for an
order compelling the defendant to comply with the mandatory provisions of the
Mediation Protocol applicable in the Gauteng Division of the High Court – As
Amended by 27 October 2025 (‘the Mediation Protocol’) . The plaintiff, in
particular, applies in terms of para 4.9 the Mediation Protocol for an order in the
following terms: -
‘(1) Directing the [defendant] to file a compliant amplified Rule 41A notice in
compliance with paragraphs 4.6.2 to 4.6.2.8 of the Mediation Protocol applicable
in the Gauteng Division of the High Court (the "Mediation Protocol").
(2) Directing the [defendant] to cooperate in the appointment of a mediator or the
furtherance of the mediation process in accordance with the Directive introducing
Mandatory Mediation in the Gauteng Division and the Mediation Protocol.
(3) Directing the [defendant] to bear the costs of this application on such punitive
scale as the Court deems fit in terms of paragraph 4.10.1 of the Mediation
Protocol.
(4) Further and/or alternative relief.’
[3] The defendant opposes the plaintiff’s interlocutory application on the
basis that he ‘ does not agree to the referral of this matter to mediation ’. The
defendant submits, in his notice in terms of rule 41A(2)(b), that the dispute is
one which is incapable of resolution through mediation , which will, according to
him, ‘prolong the already protracted litigation and increase the costs of litigation
for all parties involved ’. The case on behalf of the defendant is furthermore that
the parties have on various occasions attempted to settle the matter, with no
success. To employ a mediator , so the contention on behalf of the defendant is

success. To employ a mediator , so the contention on behalf of the defendant is
concluded, will only result in further unnecessary and wasted costs as t he
disputed facts, and a finding of fault on the part of either party , fall well outside
the scope of a mediator's mandate.

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[4] In his answering affidavit in opposition to the plaintiff’s application, the
defendant adopts the same attitude and remains adamant that the dispute
between the parties cannot be mediated. The defendant expresses these
sentiments in strong and at times dismissive terms – that being dismissive of
the mediation processes envisaged by the Directive and the Protocol. So, for
example, the defendant has this to say in his answering affidavit: -
‘(26) As stated above, I refused to settle the matter and pay the plaintiff even as little
as one Rand for the injuries that I did not inflict.
(27) I am an elderly man with a limited source of income. I refuse to pay a mediator
tens of thousands of rands to attempt to settle the matter between myself and the
plaintiff and in terms of which I refuse to pay any sort of compensation towards
the plaintiff.
(28) Besides the above, what the plaintiff seeks the mediator to make
pronouncements on simply falls outside of the scope of what a mediator is
supposed to adjudicate upon.
(29) For example, the mediator is ill equipped to make any sort of pronouncement as
to what the cause of the assault was.
(30) The mediator's opinion as to who the instigator of the assault was, is equally
irrelevant.’
[5] From the aforegoing it is abundantly clear that the defendant holds the
view that mediation in this matter would serve no purpose – none whatsoever,
and that in the circumstances of this matter mediation is bound to fail.
[6] The issue to be considered in this interlocutory application is simply
whether the stance adopted by the defendant in this matter vis -à-vis mediation
is a valid ground on which mediation can and should be avoided. Closely
related to the aforegoing is the issue relating to whether or not the defendant’s
rule 41A(2)(b) notice can and should be classified as ‘irregular’ as envisaged by
para 4.7 of the Mediation Protocol, which reads as follows: -
‘4.7 Irregular Notices:

para 4.7 of the Mediation Protocol, which reads as follows: -
‘4.7 Irregular Notices:
4.7.1 A generic Rule 41A notice delivered by a party (the delinquent party) to another
party (the aggrieved party), either of its own volition or in response to the receipt
of an Initial Rule 41A Notice or an Amplified Rule 41A Notice from the aggrieved

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party, as the case may be, which simply rejects the referral of the matter to
mediation without cogent reasons (specifically and directly applicable to the
unique facts of the matter) motivating why:
4.7.1.1 the matter cannot be resolved, either in full or partially; and
4.7.1.2 none of the other aspects provided for in terms of Rule 41A including:
4.7.1.2.1 the identification and classification of issues in dispute, and
4.7.1.2.2 the procedural aspects and timelines to be applicable to the further
conduct of the matter
can be dealt with by way of mediation, is inadequate and constitutes an irregular
notice (irregular notice).
4.7.2 An aggrieved party who received such an ir regular notice shall be entitled to
proceed in accordance with the provisions of Rule 30A. Furthermore, the
provisions that relate to delinquent parties, as set out in paragraph 4.9 below,
shall be applicable and the aggrieved party shall be entitled to proceed
accordingly.’
[7] As for the latter dispute, I am of the view that the defendant’s rule
41A(2)(b) notice does comply with the requirements of the Protocol and that
same is not an ‘irregular notice’, as envisaged by para 4 .7 supra. The said
notice does, in my view, set out ‘cogent reasons, specifically … applicable to
the unique facts of the matter’. Those facts are that the matter has had a long
and a tedious history and that there have been many attempts to settle the
matter, all of which endeavours have been fruitless. The notice therefore
indicates by implication that the defendant sees no need to refer to the other
issues mentioned in para 6.2 of the Protocol. The point is that once a party
indicates in her/his amplified rule 41A(2)(b) notice that she/he disagrees with
the referral of their matter to mediation and he sets out cogent reasons why that
is so, there is no need for him or her to deal with any of the other issues
referenced in paras 4.6.2 and 4.8.3 of the Protocol.
[8] The question remains, however, whether the defendant’s response

[8] The question remains, however, whether the defendant’s response
grounds the parties being excused from mediating the issues in dispute
between them. In short, I think not. And I do so for the reasons set out in the
paragraphs which follow.

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[9] It cannot possibly be that a litigant’s belief, however genuinely held, can
be decisive in deciding whether a matter should be subjected to mediation. The
fact that parties are involved in litigation probably means , more often than not,
that they do not believe that the matter is capable of resolution. Neither can the
fact that the parties have previously attempted settlement dictate that a matter
cannot be mediated. To hold otherwise would, in my view, defeat the purpose of
the mediation processes as envisaged by the Court Annexed Mediation
Directive and the Protocol thereto.
[10] The purpose and the aim of the Directive and the Protocol, as expressly
provided for in para 2 of the Protocol is to provide a structured standardised yet
flexible framework for implementing court -annexed mediation in this Division of
the High Court. Importantly, the Protocol aims to p romote the use of mediation
as an alternative dispute resolution mechanism to alleviate congestion on the
court rolls , as well as to e nhance access to justice by providing an efficient,
cost-effective and less adversarial method of resolving disputes . Moreover, and
this is important particularly in casu, the aim of the Protocol is to f oster a culture
of cooperation and mutual respect among litigants.
[11] The point is that, if regard is had to the purpose and the aim of the
Protocol, parties should be excused from subjecting their disputes to mediation
only in exceptional circumstances. Extreme acrimony between the parties and
the fact that one of the parties to the litigation believes subjectively that the
mediation would be a waste of time, are not exceptional circumstances. The
stance adopted by the defendant in this matter misses the point of Court-
annexed Meditation and loses sight of the fact that a M ediator is an impartial
third party who helps the parties identify solutions. The mediator asks
questions, reframes issues and helps the parties understand each other 1. The

questions, reframes issues and helps the parties understand each other 1. The
Protocol also obliges the parties to act in good faith during the mediation
process and to participate actively and constructively in mediation sessions .
Moreover, the style of mediation for the Protocol is required to be f acilitative in

1 See paras 6.4.10 and 6.5 of the Mediation Protocol.

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that the Mediator facilitates a process of communication between the parties, so
as to assist the parties to craft their own unique solution to the dispute2.
[12] For all of these reasons, I am of the view that the defendant should be
compelled to cooperate in the appointment of a mediator and in the furtherance
of the mediation process in accordance with the Mediation Directive and the
Protocol thereto. In particular, the defendant should , in an amplified rule
41A(2)(b) notice, indicate inter alia: (a) His preference for administration of the
mediation process in accordance with paragraph 3.1 of the Protocol; and (b)
The name and relevant details of one or more proposed mediator(s).
[13] As for costs, the defendant, in his opposition to the plaintiff’s application
and the mediation process, was clearly acting bona fide and in the genuine
belief that the parties should be excused from subjecting their matter to
mediation. It is also so that the Directive and the Protocol were introduced
recently and the litigants are only just getting used to the new way of litigation in
this Division. It can safely be said that the litigants are still feeling their way
through these new rules and procedures.
[14] I am therefore of the view that there should be no order as to costs and
that each party should bear their own costs relative to this interlocutory
application.
Order
[15] In the result, I make the following order in terms of the Mediation
Protocol: -
(1) The defendant shall cooperate in the appointment of a mediator and in the
furtherance of the mediation process in accordance with the Mediation
Directive and the Protocol thereto.

2 Para 6.5 of the Protocol.

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(2) The defendant be and is hereby compelled to, within ten days from date of
this order, deliver an amplified rule 41A notice in terms of para 4.6 of the
Mediation Protocol, stipulating inter alia his preference for the
administration of the mediation process in accordance with paragraph 3.1
of the Mediation Protocol and the name and relevant details of one or
more proposed mediator(s).
(3) The plaintiff shall respond within ten days from date of delivery of the
defendant’s aforesaid amplified rule 41A notice, by delivering his further
amplified rule 41A notice in terms of 4.6.2 of the Protocol.
(4) Each party shall bear his own costs of this opposed interlocutory
application.
_______________________ ___
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg

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HEARD ON: 11 November 2025
JUDGMENT DATE: 17 November 2025 – Judgment
handed down electronically
FOR THE PLAINTIFF: R J Bouwer
INSTRUCTED BY: Martini Patlansky Attorneys,
Morningside, Sandton
FOR THE DEFENDANT: D J Coetsee
INSTRUCTED BY: Lerena Attorneys,
Sunninghill, Sandton