Gauteng High Court proposes mandatory mediation for civil cases

Gauteng Judge President Dunstan Mlambo has proposed mandatory mediation for all civil matters. Archive photo: Ashraf Hendricks/GroundUp

• The Gauteng High Court has too few judges for the number of civil matters enrolled, with the earliest available court dates in 2031.
  
• A draft directive by Judge President Dunstan Mlambo proposes that cases will only be set down for trial if they first undergo mediation.
  
• Some lawyers are concerned that their clients’ constitutional rights may be infringed.

Too many cases and too few judges. This is the situation faced by Gauteng Judge President Dunstan Mlambo who has now proposed drastic measures, including a requirement for civil cases to first undergo a mediation process before being set down for trial.

Gauteng is the largest and busiest high court division in the country. One advocate GroundUp spoke to estimated that Johannesburg alone was short of about 15 judges.

The earliest court dates currently available for civil matters are in 2031. And, Mlambo said, 85% of civil cases are settled on the morning of the trial date, even though the dates had been set down two to three years earlier.

A draft directive, with a proposed implementation date of 14 April, was circulated on social media on Monday. Spokesperson for the Office of the Chief Justice Lusanda Ntuli told GroundUp the draft had been distributed to law societies and practitioners for comment and suggestions by 3 April. “It was sent out on 20 March. It is not final,” she said.

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If Mlambo’s proposals are adopted, all civil cases with trial dates for 2025 will still be heard, but those set down in 2026 will only be heard if a mediator’s report accompanies them. If no report is provided, the matters will be struck off the roll without costs. All civil matters set down to be heard after January 2027 will be cancelled.

Matters relating to the Road Accident Fund (RAF) have swamped the rolls for decades. RAF cases set down for term two of this year will still be heard, but those set down for terms three and four must be accompanied by a mediator’s report. All RAF cases set down in 2026 will be cancelled.

Newly enrolled cases “must be accompanied by a mediator’s report filed no later than 30 court days before the trial date,” Mlambo’s directive read.

The response from lawyers has been mixed. Some told GroundUp it was “long overdue”, but others said it would deprive litigants of their constitutional rights to access courts by forcing them into mediation which should be a voluntary process.

“It just creates another hindrance, and another layer of expense, to accessing justice,” said one senior advocate.

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Most agreed that the biggest problem was the lack of judges, and the time the Judicial Services Commission took to fill vacancies.

The draft directive was welcomed by judicial monitoring organisation Judges Matter. According to senior researcher Mbekezeli Benjamin, Gauteng is the economic hub of the country and therefore handles 50% of all civil litigation in South Africa.

“Although we understand the frustration by attorneys with cases enrolled beyond January 2027, we believe it nevertheless necessary to cancel those dates to ensure this initiative succeeds,” said Benjamin.

He said that 85% of civil trials in Gauteng were settled on the morning of the trial, wasting “scarce judicial resources” and “denying a trial date to a more deserving case”.

“This has to stop. We hope the legal community will provide their full support and cooperation in ensuring this initiative succeeds, as it will ultimately benefit the public who are hungry for justice,” Benjamin said.

However, Benjamin said there is still a dire need to increase the number of judges. “We hope the Minister attends to this urgently,” he said.

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In the draft directive, Mlambo wrote that the last time the number of judges in Gauteng increased was in 2008 “and yet the caseload continues to rise and has now reached unmanageable levels”.

“This state of affairs is self-evidently unacceptable and intolerable,” he stated.

He said the majority of cases on the civil trial roll were capable of resolution through mediation, settlement and other dispute resolution means.

“These are cases that take up a sizable portion of the roll and inevitably cause deserving cases to wait for inordinately long periods for hearing.”

Further, a sizable number of cases per week were dealt with in the default judgment and settlement rolls of the division.

The diversion of matters to mediation would ensure that only deserving cases would be placed on the trial roll. Compulsory mediation has become a “global trend” and Gauteng would “pioneer this progressive development,” Mlambo said.

This article was originally published on GroundUp.

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