Judge Mlambo proposes compulsory pre-trial mediation to clear civil trial backlog

Judge President of the Gauteng division of the High Court, Dunstan Mlambo, has issued a contentious draft directive that will see litigants forced to enter into mediation before civil matters go to trial.

The Gauteng Division of the High Court circulated the draft directive for the input of law bodies, practitioners, and litigants in general, for comment and suggestions.

The deadline for submission is 3 April 2025.

Directive

Current civil trial dates in the division have been issued as far as 2031. This means litigants must wait about six years for their matters to be heard.

The Judiciary said the directive aims to alleviate the backlogs and constraints plaguing the Division’s Civil Court roll.

“This situation is untenable and infringes on the right to access to Courts as guaranteed by section 34 of the constitution. The effect of these matters on the trial roll prejudices matters that genuinely deserve judicial attention by means of a trial.

“Expedited litigation is in the best interest of the litigants involved. Hence, mediation has been selected as the option to fulfil this objective,” the Judiciary said.

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Mandatory mediation

In consultation with stakeholders, the division has tried to find solutions to mitigate these challenges in an attempt to deal with the case backlog.

The Judiciary added that one of these solutions has culminated in developing the Draft Directive on Mandatory Mediation.

“The option of the mandatory mediation is informed by the fact that more than 85% of trial matters that have waited years to be on the trial roll always settle upon the arrival of the trial date. This clearly demonstrates that the majority of matters that are congesting the trial roll should have been resolved a long time ago.

“There are a number of reports that have been issued, which purport that the draft Directive is final and being implemented. It should be noted that the document being circulated is undated and, as stipulated, only a draft for comment,” it said.

The Judiciary said the draft directive is aimed at the Civil Court Roll. Further to this, all efforts have been made to ensure that the draft Directive does not detract or impede any established Rules of Court.

Resolving cases

Mlambo, in the draft directive, states that “it is critical to ensure that cases that genuinely deserve the attention of a Judge are able to be timeously heard.

“Moreover, it is critical that cases that do not reasonably require a Judge to resolve the parties’ dispute do not dog up the Court roll and consume precious Court time. Currently, the majority of cases on the Civil Trial roll are capable of resolution through mediation, settlement, and other alternative dispute resolution means.

“These are the cases that take up a sizeable portion of the Civil Tral roll and inevitably cause deserving cases to wait for inordinate long periods for a hearing. The statistics of cases accommodated on the Civil Trial roll of this Division evince that 85% of them are settled on the morning of the trial date,” Mlambo said

Mlambo seeks to make mediation mandatory for all civil trials, an attempt to alleviate the court’s workload. 

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