It is common cause amongst lawyers that the case load of the Gauteng Division of the High Court has now reached unmanageable levels. The state of the civil trial rolls, in particular, is a source of serious concern: Civil Trial Dates are currently issued as far ahead as 2031/32 i.e. six years in the future.
In consequence of this unacceptable backlog, timeous access to justice, within the meaning of the Constitution, is unachievable.
The Mandatory Mediation Directive of the Judge President
The Office of the Judge President of the Gauteng Division on 22 April 2025 issued a Directive introducing Mandatory Mediation in the Gauteng Division, in an effort to separate the majority of cases on the Civil Trial Roll, which, in its view, are inherently capable of resolution through mediation, settlement, or other alternative dispute resolution means. The Directive points out that statistics of cases accommodated on the Civil Trial Roll of the Gauteng Division demonstrate that up to 85% of such cases are settled on the morning of the Trial Date.
In essence then, the Directive is designed to filter the case load to provide that only those cases warranting judicial attention be enrolled. Those cases capable of settlement should be settled. In order to achieve this filtering process, ALL matters must undergo a process of mediation at an early stage, which would likely lead to the unclogging of the Roll by the removal from the Roll of those matters which are settled in consequence of the mediation procedure.
The Directive requires that the mediation procedure be governed by professional Mediators who are accredited with Recognised Mediation Organisations.
This new Directive has taken some time to achieve traction, but, obviously, as time passes it will become common to all trial matters.
Supplementing the Directive is a Mediation Protocol for the Gauteng Division which sets out in some detail the consequences of the Directive and the methodology to be followed by lawyers in the implementation of the Directive.
The Teeth In the Directive
With effect from the date of the Directive (22 April 2025), no case shall be issued a Trial Date unless the request is accompanied by a Report on the Mediation held, as contemplated in the Mediation Protocol. This effectively ensures that at the time, at very latest, of the closing of all pleadings relevant to a case, no further progress can be made without a Mediation having been carried out and a Mediation Report having been issued.
Further, the Directive and the Mediation Protocol lay down various conditions which effectively require that the Mediation is not merely a tick box exercise, and that it is substantive in its procedure and at very least, serious in its nature and endeavours. Its purpose is clear: it must so far as possible deflect out of the Court Roll all matters capable of being settled, and parties to the trial are obliged to participate in a meaningful fashion in the mediation procedure.
The Nature of Mediation
Mediation is not in its nature a form of Court proceedings or Arbitration proceedings in that the Mediator has no authority, having completed the mediation procedure, to make an Order on the matter before the Mediator.
The task of the Mediator is to persuade parties to reach a settlement agreement, and, failing that, to persuade the parties to at least narrow the issues in their dispute for the purposes of reducing Court time required in due course.
It could be argued that the omission of an authority to make an Order renders the mediation process of little worth: there is however substantial evidence in global jurisdictions (and also local jurisdictions in certain specific areas of our law) that this view is erroneous and that the process of mediation is ever more likely in the modern legal fraternity to be a fundamentally important procedure in the assistance of providing justice to the public within a reasonable period of time.
Further to the above, achievement of settlement at an early stage in litigation shall generally ensure a substantial saving in the cost of such litigation, by removing trial days, and the consequent cost of expensive lawyers, and by removing opportunity to appeal matters and thereby continue the cycle of litigation in a matter which may well have been settled at an earlier stage.
Conclusion
It seems clear that the introduction of Mandatory Mediation, and its growing influence in the process of litigation, for the time being only in the Gauteng Division, is to be welcomed as an intelligent and proactive approach towards what is currently an unworkable situation.
It would not be surprising if the initiative set by the Office of the Judge President of the Gauteng Division is not followed shortly by other Divisions of the High Court of South Africa.