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Court backlogs are a threat to justice – mediation is part of the answer

Michael Louis
By Michael Louis
30 Jul 2024
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Our courts are hopelessly overcrowded. Litigants wait up to three-and-a-half years to get trial-ready cases heard by the high courts, while it can take up to 20 years for matters to be disposed of by the Supreme Court of Appeal.

While history was being made last week when President Cyril Ramaphosa announced Justice Mandisa Maya as the first female Chief Justice, Parliament was voting to pass the Appropriations Bill which effected financial cuts to judicial services.

The outgoing Chief Justice, Raymond Zondo, this week reacted with outrage that he and his judiciary had not been consulted and that he no longer could deliver the services expected. He said the matter now rests in the hands of the executive to intervene in this critical impasse.

Currently, more than 180,000 cases are waiting to be heard in our courts. 

In Gauteng, judges must write 642 judgments a year; in KwaZulu-Natal, it is 427, and in Limpopo, 1,052. Many are complex, far-reaching and setting weighty legal precedents. In some provinces, court dates are already being set down for 2027. The additional challenges faced by judges are resource, water and Wi-Fi issues, access to limited researchers and various IT and tech constraints.  

Justice denied


Based on the adage “justice delayed is justice denied”, it is clear that the citizens of our country are being denied access to justice and our legal system is failing the people. 

This was the unanimous view of delegates – including members of the judiciary, advocates, attorneys and senior government officials – at a conference hosted by Mediation and Access to Justice on 18 July. They agreed that urgent change is needed to address the shortcomings of our judicial system and the way conflict is dealt with in the country.  

Our courts are hopelessly overcrowded. Litigants wait up to three-and-a-half years to get trial-ready cases heard by the high courts, while it can take up to 20 years for matters to be disposed of by the Supreme Court of Appeal.

Members of the judiciary are overworked and underpaid – salary increases have not kept up with inflation. 

Gauteng Deputy Judge President Roland Sutherland recently said he needs an additional 20 judges to be appointed in his division alone to cope with the current workload. This situation is unsustainable and urgent measures are needed.  

Conference delegates also agreed that High Court Rule 41A – which was adopted in March 2020 and recently replicated in the Magistrates’ Court Rules to alleviate the situation by advancing mediation – has failed dismally in achieving its intended purpose.

The rule has become a “tick-box” exercise with trial lawyers advancing spurious reasons for matters ostensibly not being capable of mediation, and hardly any mediations have come about because of the rule. 

The adverse consequences are ruining the lives not only of litigants but also many other South Africans who are directly or indirectly affected by cases being litigated instead of mediated. Urgent and far-reaching change is accordingly required. 

Conference resolutions


Some of the following urgent resolutions were taken at the conference: 

  • The minister of justice must throw his weight behind the proposed new legislation regarding mediation and do everything he can to expedite its implementation. This is the excellent work done in the last few years to finalise the Law Reform Commission’s Project 94 on a new legislative framework regarding mediation and conflict resolution. 

  • The minister of justice, together with the minister of cooperative governance, should do whatever they can to support the reinstatement of a community mediation and peace-building task team akin to that which existed in 1994. Once established, this initiative will also have a massive, positive spin-off for our justice system as it will divert many disputes away from our overburdened court system to consensual and peaceful processes such as dialogue and mediation. 

  • There must be support for the development of a professional body or bodies responsible for education, standards, accreditation, specialisation and tiers of mediators.

  • Launch of private projects, including with the various offices of the state attorney, for the referral of matters for mediation.

  • There must be engagement with the Chief Justice and deputy minister of justice to host a workshop involving judges and magistrates (chief magistrates’ forum) on the broader application and stricter enforcement of the provisions of Rule 42/72. 


Traditional values


There was consensus that a contributory way forward to alleviate the backlog is to legislate a new judicial model in accordance with the traditional values of human dignity and reconciliation.

This includes a new local government infrastructure that will give all South Africans access to facilitative mediation to resolve their conflicts in an expeditious, cost-effective and dignified manner that accords with the traditional values of Ubuntu. This includes fostering a culture of accountability and transparency within the judicial system.  

As civil society organisations, we are now called upon to put pressure on the ministers of finance, justice and cooperative governance to immediately intervene and give effect to section 34 of the Constitution, which recognises the right of access to the courts, including a party’s right to have their dispute heard in court or at an independent and impartial tribunal or forum.

Let us work together to create a judicial system that upholds the principles of justice, equality and fairness for all South Africans. Only then can we say that we live in a society governed by the rule of law. DM

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