By Sipho Matshie
Introduction
The fundamental principle that “justice delayed is justice denied” is at the core of the recent directive introducing compulsory mediation in the Gauteng Division. The backlog in civil trials, with matters set down as far as 2031, indicates a dire need for reform. Section 34 of the Constitution of the Republic of South Africa, 1996 (the Constitution) guarantees the right of access to court; however, excessive delays undermine this right. The proper effect of section 34 is enabling litigants to approach the court and litigate without undue delay (Social Justice Coalition and Others v Minister of Police and Others [2022] ZACC 27 at para 61).
The directive aims to alleviate these delays by diverting cases that can be resolved through mediation, thereby ensuring that matters truly requiring judicial intervention receive timely adjudication. While this approach enhances access to justice, its implementation must be carefully monitored to ensure that it does not become an additional bureaucratic impediment.
The need to guard against abuse of the mediation process
While mediation is a valuable tool for dispute resolution, making it obligatory raises several concerns. It cannot be gainsaid that it is a cost-effective mechanism compared to protracted litigation. Be that as it may, mediators do charge fees and the requirement to engage in mediation before proceeding to trial may add another layer of expenses for litigants. Who bears the mediation fees?
The Plaintiff, as the so-called dominus litis, may presumably be seen as the party that will bear the costs related to the mediation process considering that this is actually the party with the responsibility to see through the matter until finality. This is disadvantageous, especially if the Defendant does not entertain any request to collectively borne the mediation fees.
Another disadvantage for the Plaintiff is a possible and deliberate frustration of the mediation process by the Defendant, by invoking the so-called stalingrad approach to delay legitimate claims. Even though the mediator in his or her report may detail the attitude of the Defendant, so as to possibly assist the Plaintiff to claim costs, the injustice of having been subjected to a delay tactic remains intact. I find compulsory mediation to be unfair to parties with merited claims, who will have to engage mediation as a procedural requirement with no intention of resolving the dispute. Save for a court judgment, mediation reports rely on mutual consensus. If parties fail to reach a resolution, the dispute must still proceed to trial, potentially prolonging the process rather than streamlining it.
The High Court’s power to regulate its own processes
The directive finds its legal foundation in Section 173 of the Constitution, which grants superior courts the inherent authority to regulate their own processes. The introduction of compulsory mediation is one of the key decisions a head of court can take to ensure a seamless functioning of the court. In his own words, Judge President of the Gauteng Division, Honourable Mlambo says ‘it would be irresponsible’ for him to see crisis in his court and then do nothing about it.
However, while the courts have the discretion to implement measures ensuring efficiency, such measures must align with constitutional rights and the rule of law. Section 173 of the Constitution does not operate in isolation of all other provisions of the Constitution, particularly those contained in the Bill of Rights. In the court’s endeavour to alleviate its own burden, such a burden should not be imposed on the shoulders of the litigants. In this respect, I find the decision to cancel Road Accident Fund matters from 1 January 2026 and any other civil trial from 2027 which were already set down for hearing to be unfair, if not unconstitutional.
A long overdue intervention: final remarks
The backlog of civil trials in the Gauteng Division has reached crisis levels. The statistics indicate that 85% of cases on the civil trial roll settle on the morning of the trial date. This suggests that had mediation been pursued earlier, many cases could have been resolved without burdening the court system. By making mediation obligatory, the judiciary seeks to filter out cases that do not necessitate judicial intervention.
While the defects of compulsory mediation are evident, its introduction must be seen as a proactive step toward judicial efficiency. It represents an attempt to restore balance to an overburdened system and ensure that those in need of urgent judicial intervention receive timely relief. The legal profession must therefore embrace mediation as a necessary intervention while remaining vigilant in addressing its limitations.
About the author:
Sipho Matshie is an LLB graduate and LLM candidate at the University of South Africa. He currently serves as a Candidate Legal Practitioner at University of South Africa’s Law Clinic.