Compulsory pre-trial mediation proposed for all Gauteng civil matters in bid to clear backlog

Want to sue someone in Gauteng? As it stands, you are looking at a court date of 2031. This state of affairs, observed Judge President Dunstan Mlambo in a new draft directive, is “self-evidently unacceptable and intolerable”.

The proposed solution: every civil matter must first go to mediation. Only if it cannot be resolved in that manner can it proceed in front of a judge.

“No matter shall be allocated a trial date unless the request is accompanied by a mediator’s report,” states Judge Mlambo’s directive.

The only trial dates which would remain intact without mediation would be those set down in 2025 which do not involve the Road Accident Fund (RAF), and in cases which do involve the RAF, the dates allocated in Term 2 of 2025.

Judge Mlambo says his courts are following international best practice: “The application of obligatory mediation in other jurisdictions has demonstrated a global policy shift in favour of mediation as an effective option to guarantee effective access to justice and courts.”

Not everyone agrees.

Judge President Dunstan Mlambo. (Photo: Fani Mahuntsi / Gallo Images)

Differences of opinions on how to clear backlog 

There is consensus that the backlog on the Gauteng court roll is a massive problem.

“What’s effectively happening is that you’ve got a complete collapse of justice [in Gauteng],” explained one senior advocate to Daily Maverick this week.

One of the major causes jamming up the roll: the extraordinary number of matters set down for trial involving the RAF, which is why RAF matters were singled out for separate treatment in the draft directive.

Another advocate estimated that if all RAF matters were cleared from the Gauteng court roll, the backlog could be reduced from six years to 1½ years in one fell swoop.

Other significant causes: legal action against the South African Police Service (SAPS) for unlawful arrest and legal disputes between the City of Johannesburg and customers over alleged account arrears.

Many Gauteng-based legal practitioners will tell you that the solution is straightforward: the division needs more judges — depending on who you ask, anywhere from 20 to 50 more full-time judges.

Those judges need clerks, offices, and courtrooms to sit in — all of which costs money that is not readily available.

Others insist that the lack of judges is not the whole problem.

“The adversarial court process almost inevitably causes backlogs through delays and inefficiencies,” says advocate Nadine Fourie, who works in both litigation and mediation.

Fourie points to a statistic given in the draft directive: that 85% of cases set down on the Gauteng civil trial roll are settled on the morning of the trial date.

“If it’s going to settle on day one of the trial, that means it could have been settled before,” she says.

“There are already provisions in the court rules that require the parties to consider mediation. However, if you don’t make it a more forceful requirement, and enforce it, it won’t be utilised in a way that is actually effective.”

Is it constitutional? 

One senior advocate said the directive might face a constitutional challenge on the grounds that it violates the right of access to a court.

But waiting six years for a trial date is also not effective access to a court, Fourie points out, while more effective pre-trial mediation could improve access.

Another issue raised is that it potentially contravenes the uniform rules of court, in that the directive would apply only to the Gauteng courts but not to the divisions in the rest of South Africa.

The draft directive hints, however, at the possibility that obligatory mediation should be rolled out more widely.

“The direction of policy development towards obligatory mediation in litigation is clear,” it says, citing a January 2025 report by the South African Law Reform Commission and adding: “In the Gauteng Division it has been decided to pioneer this progressive development so that effectiveness of the litigation service can be achieved without further delay.”

The Personal Injury Plaintiff Lawyers Association (Pipla) has voiced concern that it could cause “massive prejudice to plaintiffs who have matters on the roll now”.

Pipla CEO Justin Erasmus also questioned how the RAF would find mediators to mediate “300 matters a week”, saying the directive was “not thought through”.

In further written objections, Pipla raised the issue of the cost of mediation as a major concern:

“The financial cost of mediation will also make it difficult for many plaintiffs to approach the courts. There is a misconception that most plaintiffs enter into contingency fee agreements and the glib assumption then arises that ‘the attorney can pay’. This is not the case. Even in the personal injury sphere, the use of contingency fee agreements is in decline. Also, the directive applies to all trials and it is myopic to claim that the costs of mediation will not limit access to justice.”

Daily Maverick sent questions to the office of the Chief Justice. We did not receive a direct response, but on Tuesday the office sent out a statement clarifying:

“There are a number of reports that have been issued, which purport that the draft Directive is final and being implemented. It should be noted that the document being circulated is undated, and, as stipulated, only a draft for comment.”

The deadline for comment is, however, 3 April — which some legal practitioners have complained is unreasonably short.

Measure could produce ‘a better quality of justice’ 

Fourie points out that the directive does not mean that parties are obliged to resolve their dispute through mediation, only that mediation must be attempted before you secure a trial date.

“You can’t force people to reach consensus,” she says.

The advocate also believes it’s important to separate the concepts of mediation and settlement.

“Mediation adds something that settlement doesn’t: it brings an independent party to work with the litigants not on power play, which is what is done in settlement discussion. Instead, the parties are helped to actually figure a solution for their dispute,” says Fourie.

“I am persuaded that it will not only reduce the roll, but also produce a better quality of justice.” DM