Introduction
Mediation is when a third party, who is completely separated from the dispute in question, hears both parties’ disputes to resolve them without the need to approach a court.
Recently, with significant backlogs in the Gauteng High Court, the possibility of only getting a trial date in 2027. Gauteng High Court Judge President Dunstan Mlambo issued a draft directive in which he sets out a plan to deal with the congested civil trial rolls in a timely manner. The members of the legal fraternity are called on to submit their input regarding the directive before it comes into force.
Content Of The Directive
The directive entails that before one gets a trial date in court, the parties first need to attempt mediation. Only once mediation has been completed and the dispute in question is unresolved, will one be able to proceed to a civil trial. It has been said that only RAF matters will be kept on the roll without the requirement of a mediation certificate.
Criticism
Yet a lot of criticism has arisen in relation to the RAF matters, that if RAF and SAPS-related matters are removed from the roll, one would get a date as soon as in one and a half years and not 6+ years. Suggestions such as the need for between 20 and 50 judges are needed to resolve the collapsed system.
Should This Directive Come Into Force, Will It Be Constitutional?
There will be technical implications, such as the right to access the court, but taking the ratio into account of waiting 6+ years for a trial date compared to a mediation with a possibility of settling it long before 6 years should not be missed.
Newly Drafted Legislation in Relation To The Directive
It is encouraged that obligatory mediation forms part of the newly drafted legislation.
Conclusion
Even though it was just the Gauteng Judge President who made the directive for the Gauteng provision, it’s a good directive to introduce to the whole of the South African legal fraternity. It will raise concerns, but considering the ratio, one can get one’s matter heard much quicker than waiting for a date of more or less 6+ years for it to be heard for the first time.
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