On 22 April 2025, Judge President Dunstan Mlambo issued a directive and a protocol introducing mandatory mediation in the Gauteng Division of the High Court.
In terms of the directive, mediation is now mandatory for all civil trial matters and no case shall be allocated a trial date unless the request is accompanied by a mediation report or a report by a judicial case manager in cases before the Commercial Court.
Another immediate effect of the directive is that all trial dates set down for after 01 January 2027 are now withdrawn, effectively clearing the court’s trial roll, making room for fresh and earlier enrolments and eliminating the seven-year delay.
Judge President Mlambo noted that the caseload in the High Court has reached unimaginable levels, with civil trial dates in the division being allocated as far ahead as 2031. According to him, this situation is “inimical to effective and timeous justice and ought to be condemned as unconstitutional.”
According to the Judge President, mandatory mediation will promote for the right to access to courts as envisioned in section 34 of the Constitution. This is further supported by the fact that mediation is already part of our legal framework, the Report of the Law Reform Commission and its Draft Mediation Bill provide for mandatory mediation and the application of mandatory mediation in other jurisdiction has demonstrated a global policy shift in favour of mediation as an effective option to guarantee effective access to justice and courts.
The Directive has been met with both positive and negative feedback. Some legal practitioners have raised concerns and argue that mandatory mediation infringes on the right of access to court. Concerns have also been raised on the legality of the Directive and Protocol and whether the Judge President had the necessary authority to issue them.
A law firm, Gert Nel Attorneys, has approached the Constitutional Court for urgent direct access to declare the Directive unconstitutional and to set it aside. The firm argues, among other things, that the Judge President lacks the necessary power to enact compulsory mediation.
The Personal Injury Plaintiff Lawyers Association and other individuals have also applied for urgent direct access to the Constitutional Court, seeking to challenge Mediation Directive and Protocol as constitutionally invalid and arguing that it is impractical and unaffordable for Road Accident Funt plaintiffs.
However, the Constitutional Court has recently issued orders in both cases stating that no case has been made out for direct access and that direct access is therefore refused, which essentially means that the Constitutional Court will not be hearing the matter.
With no current ruling setting the Directive aside, the legal position is clear: mediation is now mandatory in the Gauteng Division of the High Court.
