A leading Pretoria law firm has expressed its concerns regarding plans that from next week, a system will be introduced that no civil trials may proceed before a judge unless the parties have attempted mediation first.
Gauteng High Court Judge President Dunstan Mlambo last month issued a draft directive in which he explained plans in a bid to alleviate the congested civil trial rolls. He called on members of the legal fraternity to submit their comments before the directive came into force.
Gert Nel, director of Gert Nel Inc, in a 44-page submission to Judge Mlambo, has expressed various concerns in this regard.
He said while mediation can be a valuable tool to enhance access to justice, making it a mandatory gatekeeper to the courts raises serious concerns.
The directive, among others, provides that all existing trial dates set down after January 1, 2027, are cancelled, and going forward, the Registrar “shall not issue a trial date unless a mediator’s report accompanies the request for a trial date.”
Nel said practically, a certificate from a mediator (confirming that a mediation was conducted) becomes a ticket to enter the court’s trial roll.
Judge Mlambo issued the draft directive in a bid to avert a serious crisis in this division, which is battling to keep up with the workload, given that it has too few judges. The last judicial appointment to this bench was made in 2008.
This division faces a severe backlog in civil trial matters. Civil trial dates are currently being allocated as far ahead as 2031 – a delay of six to seven years before litigants can have their cases heard.
The directive seeks to divert cases away from the congested trial roll by requiring parties to attempt mediation, reserving court time for matters requiring judicial adjudication.
Nel said while the objective of reducing undue delays and encouraging the early, consensual resolution of disputes is commendable, the means chosen to achieve this raise significant legal and constitutional concerns.
“The directive’s approach, though aimed at enhancing access to justice, may inadvertently conflict with existing legal provisions and infringe upon fundamental rights,” he said.
A concern voiced by Nel is that directing parties to private mediation (and effectively withholding court adjudication unless mediation has occurred) might exceed the bounds of “management of the court’s process.”
In contemplating a mandatory mediation framework, even the South African Law Reform Commission has recognised that compelling mediation is a limitation of rights, although potentially justifiable under certain conditions, Nel said.
He is concerned that should the directive be implemented, it could impact on parties who have already secured trial dates (many of which, under the draft directive, stand to be cancelled or deferred) and the potential costs and delay for litigants forced into mediation.
In terms of the directive, trial dates in cases against the Road Accident Fund set for the third and fourth term this year can proceed on their allocated dates only if a mediator’s report is filed with the court at least seven court days before the trial.
All civil trial dates for RAF cases from January 1, 2027, onward are cancelled and must be re-applied for under the proposed new system with mediation having been completed.
Nel said litigants who have waited years for their day in court will not only lose this but will be forced into a negotiation process before their case can be heard.
To improve access to justice and reduce delays, solutions must be found within the bounds of the Constitution and existing law, he said.