In a bid to alleviate the civil trial load in the Gauteng Division of the High Court, a draft directive was issued to the legal fraternity in which it was said that from April 14, all these cases must first be referred to mediation.
Only if no agreement can be reached via obligatory mediation, will it be entertained by the court.
This division is known to be the busiest in the country and with the lack of enough judges to do all the work, the case load is worsening by the day.
Judge President Dunstan Mlambo remarked in his directive that the last occasion this division was allocated additional judges was in 2008. Yet the caseload continued to rise and has now reached unmanageable levels.
The state of the civil trial rolls, in particular, are a source of serious concern. Civil trial dates are currently issued for 2031 - seven years in the future. “This state of affairs is self-evidently unacceptable and intolerable,” he said.
He remarked in the directive that it is critical to ensure that cases that genuinely deserve the attention of a judge are able to be timeously heard. It is also critical that cases that do not reasonably require a judge to resolve the parties’ dispute do not clog up the court roll and consume precious court time.
Currently, the majority of cases on the civil trial roll are capable of resolution through mediation, settlement, and other alternative dispute resolution means, as 85% of them are settled on the morning of the trial, he said.
These are the cases that take up a sizable portion of the civil trial roll and inevitably cause deserving cases to wait for inordinate long periods for a hearing, the judge president said.
All trial dates for all categories of civil trials set down after January 1, 2027, are meanwhile cancelled. From April 14, the registrar will not issue a civil trial date unless the request for a trial date is accompanied by a mediator’s report, Judge Mlambo said.
Attorney Nicholas Halsey of the firm SDJ Inc, meanwhile, expressed his concerns about access to justice, judicial efficiency and constitutional principles.
“While intended to reduce the backlog in civil trials, this directive threatens to undermine key legal rights and create new procedural obstacles,” he said.
Halsey is concerned that by forcing litigants to engage in mediation before being granted a trial date, the directive places additional financial burdens on them. He pointed out that the Uniform Rules of Court and a plethora of case law explicitly provide that mediation is voluntary.
He is also concerned that delinquent defendants can exploit the system to postpone proceedings even further, disadvantaging claimants with valid and urgent cases.
According to Halsey, this directive raises concerns about judicial overreach and breaches the doctrine of separation of powers. “By imposing compulsory mediation, a matter traditionally regulated by Parliament through legislation, the judiciary risks encroaching on the legislative function.”
He said the courts have a vital role in encouraging alternative dispute resolution, but they cannot undermine the established framework that balances judicial discretion with litigants' rights.
“In its current form, this directive risks undermining access to justice, increasing delays, and placing unwarranted burdens on those seeking to exercise their constitutional rights. The focus should be on improving court efficiency without sacrificing fundamental principles of justice and fairness,” Halsey said.