Compulsory Mediation in the Gauteng Division: A 10-month Implementation Review

10-Months into Operation

Ten months have passed since the Judge President of the Gauteng Division of the High Court introduced a directive making mediation compulsory before the allocation and retention of civil trial dates. The main objective of the directive was to address the severe backlog in the civil trial roll and to restore the proper functioning of the civil justice system in the Division.

This article provides a brief practical update on the implementation of the directive and highlights some of the key issues that have emerged since it came into operation.

Legal Concerns

At the outset, it is important to acknowledge that the directive was introduced amid considerable debate within the legal profession. Practitioners raised valid concerns regarding the financial burden of mediation costs, particularly for smaller firms, as well as the practical difficulty of compelling meaningful participation from institutional defendants, such as the Road Accident Fund.

Much of the early discussion focused on transitional arrangements for matters that had already been allocated trial dates. There was concern that it would be unfair for those matters to lose their allocated dates due to the introduction of the directive. Ten months later, the directive is fully operational. The focus has now shifted to its practical application and ensuring that it benefits litigants, particularly those who were previously prejudiced by losing trial dates.

Below are important considerations that must form part of the ongoing implementation discussion to ensure that necessary adjustments are made and that the directive achieves its intended constitutional purpose:

1. Refusal to Mediate

   The first and most critical issue relates to refusal to mediate. Mediation, by its very nature, requires participation by two parties. If one party refuses to engage, the process cannot function effectively. In such circumstances, the practical effectiveness of the directive is undermined.

   The mediation protocol requires that any party who refuses to mediate, must provide cogent reasons applicable to the unique facts of the matter. A party cannot simply file a generic notice of objection. Such a notice may constitute an irregular step. In certain categories of litigation, the following patterns have been observed:

   1. Notices opposing mediation without providing case specific reasons;
   2. Delayed responses to amplified Rule 41A notices;
   3. No response at all to the invitation to mediate.

   The directive is designed to reduce backlog through structured mediation. However, if one party refuses to participate or ignores the process, the intended purpose of the directive is compromised.

2. The Enforcement Dilemma: Special Interlocutory Court

   The directive does provide a mechanism to address non-compliance. Where a party refuses to mediate or fails to cooperate, the aggrieved party may approach the Special Interlocutory Court for a compelling order. If the delinquent party (as defined in the directive) remains non-compliant, the aggrieved party may be excused from mediation and allowed to enrol the matter on the special default judgment roll.

   In theory, this appears to be a workable solution. However, in practice, the process introduces a second layer of litigation. Parties who encounter non-participation must prepare interlocutory applications and obtain hearing dates for those applications. The availability of interlocutory hearing dates is itself affected by broader court backlog. As more parties approach the Special Interlocutory Court for relief, the rolls become congested, which results in further delay.

   Ultimately, the effectiveness of the directive depends not only on the compliance mechanisms it establishes, but also on the genuine participation by litigants and sufficient administrative capacity within the courts.

3. Positive Developments

   Despite these challenges, there have been encouraging developments. Where parties participate meaningfully in mediation:

   1. Matters are being enrolled on the trial roll quicker;
   2. There appears to be a reduced likelihood of postponements due to congested rolls; and
   3. The mediation process encourages earlier and more structured settlement discussions.

Conclusion

It may be early to determine the long-term systemic impact of the directive. Whether it will evolve into a sustainable structural reform within the Division will depend on the various factors discussed above. The coming months will determine whether further amendments are necessary to ensure that the directive achieves its intended purpose.

Mpumelelo Ndlela

Associate | Attorney

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