In response to unmanageable caseloads, the Gauteng Division of the High Court of South Africa (‘the Gauteng Division’) recently published a draft directive introducing mandatory mediation as a requirement for setting down civil matters for trial. At its core, the draft directive aims to modernise and facilitate the administration of justice.
Despite a growing backlog of cases, the judicial establishment of the Gauteng Division, which oversees approximately half of all civil litigation matters, has not expanded in 17 years. It is little wonder then that civil trial dates are currently issued as far ahead as 2031 – a phenomenon described as ‘unacceptable and intolerable’ by the Judge President. According to the directive, this level of delay thwarts the constitutional right to access the courts, particularly when most civil cases are settled on the day of trial and can be resolved via alternative dispute resolution mechanisms.
To ameliorate the backlog and minimise further delays, the draft directive introduces mandatory mediation for all civil matters. In practice, this means that civil cases must first undergo mediation, which involves the use of neutral third party to facilitate discussion and resolution between disputing parties, prior to being set down for trial. Accordingly, a civil matter will only proceed to trial if a mediator certifies that mediation efforts were unsuccessful. Per the proposed directive, mediators will be selected in accordance with the Mediation Protocol for the Gauteng Division.
According to the proposed directive, new procedures for civil trials will be introduced in two periods, namely a transitional period from 14th April 2025 to 31st December 2026 and the period commencing 1st January 2027:
- In line with this, cases already set down for trial in 2025 will proceed.
- Crucially, matters scheduled for 2026 will require a mediator’s report issued no later than 30 court days before trial – and cases will be struck off the court roll if this report is not provided.
- Any trial dates for cases set down from 2027 will be cancelled.
- Correspondingly, any requests for new dates must be accompanied by a mediator’s report.
While the Gauteng Division is empowered by section 173 of the Constitution to regulate its own processes, and various stakeholders are likely to express support for the move, some contend that mandatory mediation may violate section 34 of the Constitution by prohibiting persons from receiving a trial date unless they’ve first undergone mediation.
Given the potentially far-reaching implications of the draft directive, we endeavour to keep you informed of any key updates.
For expert legal assistance, contact our litigation and dispute resolution lawyers at litigation@stbb.co.za.
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