The Gauteng high court is setting down civil trials as far ahead as 2031. Photo: Sharon Seretlo/Gallo Images
Just before the long weekend, Judge President Dunstan Mlambo of the Gauteng Division of the High Court, issued a draft directive on obligatory mediation together with a protocol for the directive’s implementation.
The thrust of the directive is to make mediation mandatory for all parties seeking civil trial dates in the Gauteng division. It notes that the division is setting down civil trials as far ahead as 2031 and acknowledges that the situation is intolerable. To resolve this, the directive proposes that any cases “that do not reasonably require a judge to resolve” be diverted to alternative dispute resolution mechanisms, in particular mediation.
Only “deserving cases” should be on the trial roll, we are told, and this turn to mandatory mediation is “a progressive policy choice” reflected in global policy shifts towards “mediation as an effective option to guarantee effective access to justice and courts”. Not being weighed down by congested rolls, courts will be able to effectively “adjudicate cases that truly require adjudication”.
The directive goes on to declare that all dates allocated for civil trials from 1 January 2027 are to be cancelled and that the trial registrar may not issue new trial dates unless the request for a trial date is accompanied by a report from a mediator, presumably certifying that the dispute could not be resolved through mediation and therefore suitable to proceed to trial. The costs of the mediation are to be borne by the parties.
Noble as the directive’s intentions may be, mandatory mediation cannot and would not vindicate the right of access to courts. On the contrary, it would effectively deny thousands of litigants their right to have “any dispute that can be resolved by the application of law” decided by a court in a fair public hearing.
Before getting into the reasons why mandatory mediation is a denial of the right of access to courts and thereby undermines the rule of law, I raise some preliminary concerns about the legality of the directive.
The judge president invokes section 8(4)(b) of the Superior Courts Act of 2013, which entrusts in him the “management of the judicial functions” of his Division, as the source of the power to impose this new mediation regime. Yet it is not clear that the ability to shut the doors of the court to litigants — by diverting them to private mediation — is entailed in the “management” of the Gauteng division’s judicial functions. If anything, it is a shirking of the court’s judicial duty to do justice according to law between man-and-man for all who call on it.
The mediation protocol lists, as one of its aims, compliance with rule 41A of the Uniform Rules of Court, which governs the process of court-annexed mediation. But rule 41A is itself not peremptory: it does not require parties to go for mediation prior to the issuing of process for civil proceedings. It merely requires parties to indicate whether they consent to or oppose the referral of their dispute to mediation.
It is thus unclear what legal authority the judge president has to impose a mandatory mediation regime with such far reaching consequences for the rights of litigants. Last, mediation, at least as I understand it, is a voluntary process that parties may choose to undertake instead of the adversarial court process. Making it mandatory seems to defeat the purpose of having it as an alternative that litigants may choose to pursue.
Under the protocol, the mediation would be held in private, and its proceedings would be confidential. This would undermine the principle of open justice, a core component of the right of access to courts, which requires disputes to be heard and resolved publicly. Not only that, questions of law that arise from the facts underlying mediated disputes would be removed from public consideration by courts and their non-resolution would stunt the development of the law since mediation itself is not concerned with the content or scope of legal rights or the validity of legal claims.
In his book, Thoughtfulness and the Rule of Law, the legal philosopher Jeremy Waldron writes that the rule of law requires “that people have access to independent courts to settle their disputes and to hold the government accountable”. For Hazel Genn, in Judging Civil Justice from her 2008 Hamlyn Lectures, the right of access to courts “implies equal access to authoritative enforceable rulings and outcomes that reflect the merits of the case in light of relevant legal principles. It does not imply that laws are necessarily just, but that individuals have a fair opportunity for their rights to be determined according to the prevailing promulgated rules.”
In his review of Waldron’s book in the London Review of Books, Frederick Wilmot-Smith highlighted the centrality of courts to the rule of law, and noted that since the law is not self-executing: “If there is no such access [to courts] — or access is difficult in practice, through delay or cost — then, since law cannot rule by itself, the law will not rule.” This right to access, then, must be coupled with “a commitment to fund such legal procedures, and to reform them so that they adequately serve their purpose”. Without such funding, a legal system’s commitment to the rule of law by adherence to the right of access to court is only rhetorical.
One reason for the rise in popularity of mediation and other alternative dispute resolution mechanisms is that they are presented as a cheaper alternative to litigation. But cheaper for whom? A multinational company involved in an industrial dispute with an employee is better off in mediation than in court. For that employee, neither of them is affordable. But what the employee can count on, is that an independent judge will dispassionately determine the legal merits of her claim. Her claim to the same equal protection of the law as her employer would be recognised.
That is not the case with mediation. There is no equal protection of the law in mediation and the unequal power relations that often characterise civil disputes will be laid bare and, indeed, exploited. As Genn notes, mediation is not “about just settlement, it is just about settlement”. Whether one’s claim is good in law does not matter; what matters is how quickly one can compromise to “resolve” the dispute, with no regard to what the law governing the dispute requires. Very few mediation outcomes are ever just.
To be sure, the problems that plague the high court and which led the judge president to adopt this directive are real, urgent, and threaten the administration of justice. But they are also structural and enduring and will not be fixed by diverting civil trials out of the judicial system into private mediation. They are symptoms of the failure of parliament and the executive to take seriously the concerns that judges have been raising about congested court rolls, deteriorating infrastructure and the lack of resources for the past 15 years.
There are simply not enough courts and judges to serve the ever-growing litigating public. Judges’ remuneration has declined in real terms over the last decade relative to other legal professionals, making the bench a uniquely unattractive option for experienced lawyers. The prospect of being publicly humiliated by the Judicial Service Commission has also compounded these issues.
The graph below, by the Public Economy Project at Wits University, shows the decline of real average pay for judges from 2012 to 2021.
Courts are not properly resourced, and the administration of courts remains stuck in a tug of war between the judiciary and the department of justice. In his budget speech, Finance Minister Enoch Godongwana glibly mentioned something about “strengthening capabilities in the Office of the Chief Justice”, the government department that supports the operations of the superior courts, as a funding priority for later this year. This should tell you how not seriously the justice system is treated.
These issues will only be addressed through sustained pressure by the leadership of the judiciary for the absolute institutional independence of the courts, including budgetary independence, from the executive. Ad hoc interventions, like the mooted mandatory mediation, do nothing more than sacrifice the rights of litigants at the expense of pursuing broader systemic change.
In Equal Justice: Fair Legal Systems in an Unfair World, Wilmot-Smith argues that most legal systems in the world today are fundamentally unjust. The current distribution of legal resources, which makes justice accessible only to those who can afford it, operates as a barrier to realising the right of access to courts. The free market thinking that underpins such distribution treats justice as just another commodity that can be easily traded for another, ignoring the special value that justice has in any society that claims to abide by the rule of law.
When budgetary allocations are made for public goods, healthcare and education tend to take priority over the justice system. Yet, as Wilmot-Smith points out, this approach neglects the primacy of the justice system (particularly legal institutions) in guaranteeing justice in other spheres. A right to education or healthcare or social assistance is of no value without the ability to enforce it against the state: “A just justice system is a necessary precondition of justice in other spheres.”
The challenges facing the Gauteng division reveal the neglect of the justice system as a key pillar of well-ordered government. To resolve them, we must push to ensure that our justice system is itself just. We must fund Legal Aid, we must establish more courts and appoint more judges, and more, to make justice truly accessible.
What we cannot do is simply push people away from the courts, towards mediation, with no view of vindicating their legal rights. The poor will be hardest hit, having to shoulder the cost of mandatory mediation and the ensuing litigation if it fails. To quote Wilmot-Smith: “The success of mediation as an institution depends in part on injustice in the legal system (and resulting deficiencies in the rule of law): one of the most powerful weapons in the mediator’s hands is the cost and stress of legal dispute resolution.”
Far from ensuring access to courts, the directive merely tells litigants that their cases are not worth the time and attention of the courts, that the law is to be sacrificed at the altar of efficiency (if any results), that the doors of the court are only open to some.
The law can only rule if courts are able to enforce it. Mandatory mediation abdicates this responsibility and denies litigants their entitlement to a fair, public hearing in a court or other impartial forum, in favour of a non-legal private and confidential process where justice is not guaranteed. That should concern us all.
Dan Mafora is the author of Capture in the Court: In Defence of Judges and the Constitution (Tafelberg, 2023). He is the senior researcher at the Council for the Advancement of the South African Constitution and previously worked for the constitutional court.
