Mandatory Mediation in the Gauteng Division of the High Court
On 22 April 2025, the Office of the Chief Justice (OCJ) issued a groundbreaking directive on the implementation of mandatory mediation for all civil trial matters in the Gauteng Division of the High Court. Spearheaded by Judge President Dunstan Mlambo, this directive aims to address the severe backlog in the Division’s Civil Trial roll and ensure expedited access to justice for litigants. Below, we explore the key aspects, rationale, and implications of this directive.
Background and Rationale
The Gauteng Division of the High Court has been grappling with an untenable backlog in civil trial matters, with trial dates issued as far ahead as 2031. This delay infringes on the constitutional right to access courts, as guaranteed by Section 34 of the Constitution of South Africa. The Division’s leadership has identified that the majority of matters on the trial roll—over 85%—do not present triable issues requiring judicial intervention. These cases often settle on the trial date or are resolved through draft orders, wasting valuable judicial resources and delaying cases that genuinely require adjudication.
To address this inefficiency, the directive introduces mandatory mediation as a mechanism to expedite the resolution of disputes. Mediation, as an alternative dispute resolution (ADR) process, allows parties to negotiate and settle disputes without judicial intervention, freeing up the trial roll for cases that truly require judicial attention.
Consultative Process
The directive was developed following extensive consultations with legal practitioners, professional bodies, mediation organizations, and other stakeholders. A draft directive was circulated for comments, with feedback received from various quarters, including objections and technical suggestions. While some practitioners expressed concerns about losing trial dates and perceived mandatory mediation as a “hurdle,” the Division emphasized that mediation does not infringe on the right to access courts but rather enhances it by offering an expedited resolution process.
Legal Framework
The directive is implemented within the provisions of the Uniform Rules of Court and Section 41A of the Supreme Court Act 59 of 1959, which provides for mediation as a dispute resolution mechanism. It aligns with Section 173 of the Constitution, which empowers the Judge President to oversee the efficient administration of justice. Importantly, the directive does not compel parties to agree to a mediated settlement; if mediation fails, parties retain their right to approach the court.
Implementation Timeline
The directive takes effect on 22 April 2025, with transitional procedures in place until 31 December 2026. From 1 January 2026, new procedures for civil trials will be introduced, requiring that requests for trial dates be accompanied by a mediator’s report. This ensures that only matters that have undergone genuine mediation are placed on the trial roll.
Key Benefits
Expedited Resolution: Mandatory mediation aims to resolve disputes earlier, reducing the waiting time for trial dates and alleviating pressure on the trial roll.
Efficient Use of Judicial Resources: By removing cases that do not require judicial intervention, the directive ensures that judges focus on matters that genuinely need adjudication.
Access to Justice: The directive safeguards the constitutional right to access courts by providing an alternative mechanism for dispute resolution.
Challenges and Criticism
Some legal practitioners have raised concerns about the directive, arguing that mandatory mediation may exceed the judiciary’s powers under Section 8 of the Superior Courts Act and interfere with the constitutional right to access courts. However, the OCJ has clarified that the right to access courts is not absolute and can be limited in cases where litigants misuse judicial processes. Additionally, the directive guarantees earlier trial dates for cases that fail to settle through mediation.
Global and Local Precedents
Mandatory mediation is not a novel concept. It has been part of South African law for decades in the labour law field under the Labour Relations Act 66 of 1995. The Land Court Act 6 of 2023 also provides for mandatory mediation. Internationally, jurisdictions that have adopted mandatory mediation have reported significant improvements in access to justice and judicial efficiency.
Conclusion
The introduction of mandatory mediation in the Gauteng Division of the High Court represents a progressive step toward addressing the backlog in civil trial matters and ensuring efficient access to justice. While it may face initial resistance, the directive is grounded in constitutional principles and supported by legal precedents. By prioritizing mediation, the judiciary aims to create a litigation platform that is both effective and expeditious, ultimately benefiting litigants and the justice system as a whole.
For further details, the full directive can be accessed on the Judiciary website: Judiciary Directives.