Thousands of civil case plaintiffs could lose their long-awaited trial dates if a new mandatory mediation directive comes into effect next month.
Gauteng courts have been grappling with overwhelming caseloads and a critical shortage of judges, leading to severe backlogs. Civil trial dates are now being scheduled up to five years in advance, significantly delaying access to justice.
In response, the Judge President of the Gauteng High Court has confirmed the introduction of mandatory mediation for all civil trials starting next month. The purpose, according to the Protocol, is to promote mediation as an alternative dispute resolution mechanism, ease congestion in the courts, and improve public access to justice.
While the initiative is well-intended, Advocate Justin Erasmus, Chairperson of the Personal Injury Plaintiff Lawyers Association (PIPLA), which represents approximately 400 personal injury lawyers, notes this will effectively pre-empt work already being undertaken by the SA Law Commission to test the efficacy of mandatory mediation. He says the discussion paper is in fact out for comment until 30 April and will then be amended further, depending on the commentary received.
Erasmus says the Law Commission is still grappling with a number of issues, including concerns that this approach could not only be more expensive, but will severely disadvantage plaintiffs who are already on the court roll.
Erasmus says one must remember the core issue remains the judiciary’s severe under-resourcing. “The real problem is the lack of judges, courtrooms, and registrars. Cases are simply not being heard, and the queue has now stretched to 2031.”
While mediation may help alleviate pressure on the courts over time, this is not certain and mediation on this scale is an unproven concept. In countries like Australia where similar compulsory mediation has been implemented, they have found that over time it can actually act as a barrier to justice.
Erasmus warns that the rushed manner in which the courts propose implementing mediation could have devastating consequences and stresses this policy directive should not be made in isolation. “From June, plaintiffs will only keep their trial dates if they can obtain a mediation certificate from the Road Accident Fund (RAF) or similar mediation body. We anticipate that, in most cases, this will be impossible. This means plaintiffs who initiated legal action as far back as 2019 or 2020, and secured trial dates for late 2025 or early 2026, could be removed from the roll – despite having followed all required legal steps – simply because they cannot comply with an unworkable new requirement.” This could push their cases back another three to four years, further delaying justice.
A call for a phased co-ordinated approach
Erasmus questions whether the RAF has the capacity to even handle large-scale mediation. “With approximately 2 000 employees, expecting them to mediate 300 additional cases per week is unrealistic,” he says.
He argues that the real solution lies in addressing the judiciary’s resource crisis first and then introducing mediation as a supplementary process, phased in carefully and with input from the Law Commission paper “Mediation was first proposed over a year ago, but we only received formal notice of the directive last week, with implementation just weeks away. A sudden shift like this is unfair to plaintiffs who have already waited years for their day in court.”
PIPLA insists that the introduction of mediation does not come at the cost of justice for existing plaintiffs. “Plaintiffs who have already waited up to five years – and can demonstrate that in spite of their best intentions were unsuccessful in their mediation attempts – should not be forced back to square one. They must be allowed to retain their trial dates.”
“While we respect the efforts of the Deputy Judge President to manage court congestion, this should always be considered in a manner which is equitable to all, rather than imposing mediation with a guillotine,” Erasmus concludes.