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South Africa's Gauteng High Court has recently introduced a groundbreaking (revised) directive mandating mediation for civil matters in Johannesburg. This significant shift aims to alleviate severe court backlogs, with trial dates currently extending as far as 2031, and enhance access to justice. The directive outlines detailed procedural and transitional arrangements, signaling a profound commitment to embedding alternative dispute resolution (ADR) as a fundamental pre-litigation step.
This initiative follows the example set by a number of other jurisdictions that have adopted similar measures. These jurisdictions not only serve as a source of inspiration but also provide an invaluable framework for effective implementation of the directive, including strategies for handling potential court challenges. The primary concern in mandating mediation for civil disputes often lies in balancing judicial efficiency with the constitutional right to a fair trial and access to courts. Successful jurisdictions have addressed these concerns by positioning mandatory mediation as a procedural step rather than an obstruction to judicial resolution, frequently utilising cost sanctions and other incentives to promote participation. The South African directive is subject to similar scrutiny (at least one constitutional challenge has already been initiated) and will be observed closely as it potentially reshapes the civil justice landscape in the region.
The Gauteng High Court Directive
The Office of the Judge President of the Gauteng Division of the High Court has issued a revised directive introducing mandatory mediation for all civil trial matters within the Gauteng Division. This directive is accompanied by a comprehensive Mediation Protocol.
The directive's reach is broad, encompassing all civil disputes. This includes commercial disputes, delictual claims, family disputes and personal injury claims. This wide scope underscores the judiciary's intent to integrate mediation across the spectrum of civil litigation.
Mediation under this directive is to be initiated in accordance with Uniform Rule 41A. An amplified Rule 41A Notice must first be delivered, requiring a response within 5 to 15 court days. Should the parties fail to agree on a mediator, the responding amplified notice must propose alternative mediators from three different recognised mediation organisations (RMOs). The Protocol also provides for the appointment of an independent decision maker (an umpire) if an agreement on a mediator cannot be reached.
To ensure the quality and integrity of the mediation process, mediators must meet stringent qualifications. They must be qualified graduate professionals who have successfully completed a mediator training program affiliated with a South African University, in line with internationally accepted mediation accreditation requirements, or otherwise be accredited by the Dispute Settlement Accreditation Council of South Africa.
The mediation proceedings require parties to enter into a mediation agreement that complies with Rule 41A(4)(a) and (b) and the Mediation Protocol. Disputes can be referred to mediation through an RMO or via the Technology Group Software (TGS) electronic platform, which is designed to ensure streamlined communication and documentation throughout the process.
Parties are generally expected to bear the expenses of mediation, including the mediator's fees, with the notable exception of Road Accident Fund (RAF) matters where the RAF is expected to fund these costs. This distinction for RAF cases highlights a pragmatic approach to managing the financial burden on vulnerable litigants.
The issue of costs is likely to be central to the debate as to whether the directive infringes upon a party's constitutional rights, but most practitioners would agree that the cost of mediation is significantly lower than the cost of legal representation in a civil trial. Accordingly, this argument is unlikely to find support from those ultimately responsible for paying legal fees.
A critical aspect of the directive is the enforcement mechanism for non-compliance. Parties who refuse to mediate may face significant repercussions, including cost penalties, the loss of their allocated trial dates, and even potential professional misconduct proceedings for their attorneys.
The implementation of this new regime introduces specific changes to how trial dates are managed. For civil trials not involving the RAF, 2025 trial dates remain unaffected. However, 2026 dates are subject to the filing of a mediation report 30 days prior to the trial date, failing which these matters will be struck off the roll. All trial dates allocated for RAF matters in 2026 have been withdrawn, meaning that new trial dates will have to be applied for (once a mediation report has been obtained).
Looking further ahead, all trial dates allocated from 1 January 2027 have been withdrawn and new dates will only be allocated if accompanied by a mediation report from an accredited mediator or judicial case manager.
Rationale Behind the Directive: Addressing Case Backlogs and Enhancing Access to Justice
The overarching rationale for the Gauteng High Court's directive is to establish an effective and expeditious litigation platform that genuinely guarantees access to justice, a principle embedded in the South African Constitution.
The problem is stark: as of February 2025, the Gauteng Division's Civil Trial roll had trial dates extending as far as 2031. This severe backlog has been deemed "untenable" and a direct infringement of the constitutional right to access to courts, according to a statement issued by the Office of the Chief Justice. The leadership of the Gauteng Division determined that drastic measures were necessary to address this critical situation.
The justification for the directive is supported by statistical data presented by the Judge President's office. This revealed that only between 5-10% of matters on the trial roll (during the sample period) actually required a judge for final adjudication. The vast majority were resolved before trial through draft orders or settlements. A similar trend has been witnessed in the Pretoria High Court, leading to the inescapable conclusion that the court roll is inundated with matters that can be resolved without the intervention of a judge. This prejudices cases that truly require judicial attention.
Mandatory mediation has been selected as the optimal solution to expedite dispute resolution. By diverting a significant portion of cases from the trial roll, the directive aims to relieve pressure on the court system, enabling earlier enrollment of cases that genuinely require judicial attention. This expedited resolution is considered to be in the best interest of the litigants involved. While a lack of judges contributes to the backlog (the last increase in the judicial establishment for the Gauteng Division was in 2008), increasing judicial capacity alone is not seen as a sufficient solution to the problem.
The legal authority for the directive is rooted in Section 173 of the Constitution, which grants the Judge President authority over how matters are brought before the Division for hearing, thereby empowering measures to promote the efficient administration of justice. Uniform Rule 41A already provides for voluntary mediation as a dispute resolution mechanism. The directive emphasises that the constitutional right to access to courts is not being removed. Rather, parties are urged to meaningfully explore ADR before seeking judicial intervention. Mediation, by its nature, does not force or compel parties to agree to a result they do not want, and if a mediated settlement is not reached voluntarily, parties retain their right to approach a court.
The concept of mandatory mediation is not entirely novel under South African law. It has been an established part of the labour law field for three decades, pursuant to the Labour Relations Act 66 of 1995. The Land Court Act 6 of 2023 also provides for mandatory mediation. Additionally, Chapter 7 of the Law Reform Commission's Report and its Draft Mediation Bill support the concept of mandatory mediation. This existing legal precedent provides a foundation for the current directive.
The explicit linking in the directive of mandatory mediation to guaranteeing access to justice represents a crucial reinterpretation of this fundamental constitutional right. The Judge President's argument effectively reframes access to justice from merely the theoretical right to a court hearing to the practical ability to resolve disputes in a timely and affordable manner. A system where trial dates extend to 2031 is presented as a denial in practical terms of effective access to justice. By diverting cases that do not require judicial adjudication to mediation, the directive aims to make the court system genuinely accessible for complex matters while simultaneously providing a more efficient pathway for the resolution of other disputes. This indicates a policy shift from the passive provision of a forum to the active management of dispute resolution pathways to ensure justice for all litigants. This evolving interpretation of access to justice could set a significant precedent, not only within South Africa but potentially for other jurisdictions facing similar systemic inefficiencies, highlighting that judicial leadership is increasingly willing to implement proactive measures to optimise justice delivery, even if it challenges traditional procedural norms.
The global experience with mandatory mediation offers valuable lessons and demonstrates its potential efficacy. Jurisdictions such as the United States, Italy, the United Kingdom, Canada, Australia, Singapore, Greece, and Lithuania have successfully implemented various models of mandatory or quasi-mandatory mediation. Benefits include:
- Reduced court backlogs: By diverting cases from the trial roll, mandatory mediation alleviates pressure on the courts, allowing for faster processing of other disputes.
- Time and cost savings: Mediated cases are resolved more quickly and at a lower cost than traditional litigation, benefiting both litigants and the justice system.
- Increased litigant satisfaction: Despite initial reluctance, many participants in mandatory mediation programs report high levels of satisfaction with the process and its outcomes, often finding value in the facilitated communication and the ability to shape their own resolutions.
- Cultural shift towards ADR: Over time, these mandates, especially when coupled with incentives and clear procedural guidelines, have fostered a broader acceptance and utilisation of alternative dispute resolution mechanisms within the legal community and among the public.
A key factor in the success of these international models, and a central point of contention in court challenges, is the distinction between mandatory participation in mediation and mandatory settlement. Jurisdictions that have successfully navigated legal challenges, including those related to constitutional rights of access to justice, have done so by ensuring that while parties are compelled to engage in the mediation process [in good faith], they are not forced to reach an agreement. The ultimate right to proceed to trial if mediation fails is preserved. Furthermore, the strategic use of cost penalties for an unreasonable refusal to mediate serves as a powerful incentive for genuine engagement without denying fundamental rights.
In conclusion, while South Africa's mandatory mediation directive may face scrutiny, its objectives appear to be aligned with a broader international trend toward modernising civil justice. Evidence from other jurisdictions suggests that, when implemented with clear procedural guidelines, qualified mediators, and appropriate incentives, mandatory mediation can be a highly effective tool. The outcome of the current legal challenge in South Africa will be crucial in shaping the future of its civil justice system, but the international landscape indicates that well-designed mandatory mediation can deliver on its promise of more efficient, accessible, and fair dispute resolution.
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Read the original publication at Herbert Smith Freehills Kramer
