The Bill of Rights contained in the South African Constitution states:
Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.
When one considers the predicament that litigants and judges face the realities are that our Court systems are overloaded and under resourced, specifically in terms of the number of Judges available.
The situation has been well publicised in the media however a good article from Ground Up can be accessed here: https://groundup.org.za/article/hundreds-of-court-judgments-are-late/
Over the years there have been various initiatives to attempt to support the system, such as the appointment of Acting Judges including pro bono Acting Judges who assist for a limited period of time without receiving payment for their services. The Gauteng High Courts were also the first courts to implement the digital system CaseLines and later Court Online which works in conjunction with CaseLines.
Unfortunately, the reality is that these initiatives help but did not solve the problem. Probably the most obvious delay is in relation to the civil trial dates which were being allocated to parties with dates 7 years in the future. ‘Justice delayed is justice denied’ is definitely applicable if a party needs to wait 7 years for a trial date.
Vast numbers of additional Judges are still required but without approval for additional appointments something urgently had to be done to address the situation. The Judge President of the Gauteng High Courts and various stakeholders initiated a process with the hope of addressing the situation. This process resulted in the Judge President issuing a Directive making mediation mandatory in civil trial matters which became effective from 22 April 2025.
The Directive does a number of things:
- It embraces the process of alternative dispute resolution which enables parties to resolve their dispute through settlement rather than adjudication by a Judge;
- It makes mediation a mandatory process if a party wants to obtain a trial date, requiring the presentation of a mediator’s report as evidence of the attempts made to resolve the matter;
- It provides that all civil trial dates up to a certain date can be retained if a mediator’s report is provided timeously with other dates after a set date being cancelled in totality with the parties being required to go through the process of mediation prior to obtaining a new trial date.
The Directive has received a mixed response, which includes a court challenge, however if one considers the statistic reflected in paragraph 5 of the Directive that up to 85% of the civil trial matters settle on the day of the trial one can only imagine how much faster the roll would be if serious settlement attempts were made upfront rather than years later on the day of trial after adding to the backlog and delays of the trial roll. The overall benefit to parties who would be able to get much faster trial dates would be immeasurable.
Alternative dispute resolution definitely has shown that it can be highly successful and can resolve a large portion of disputes thereby ultimately saving parties time and money and bringing them finality much faster than if their disputes have to be adjudicated. The CCMA is a forum which demonstrates the successes of mandatory alternative dispute resolution and reports that 70% or more of the disputes referred to it being settled (https://www.ccma.org.za/about-us/)
The directive can be downloaded here DIRECTIVE ON MEDIATION IN THE GAUTENG DIVISION – 22042025, the protocall which accompanied the Directive can be downloaded here MEDIATION PROTOCOL FOR THE GAUTENG DIVISION – 22042025 and a list of accredited institutions that can assist with mediation can be downloaded here Accredited institutions for mediation.