Gauteng judge president Dunstan Mlambo’s proposal for civil cases to go through mediation before trial is welcomed, but lawyers maintain this will not significantly curb the “intolerable” caseload, and the government needs to heed long-standing calls to hire more judges.
Mlambo issued a draft directive in which he proposed introduction of obligatory mediation for civil cases before the court places the cases for trial because the caseload for the High Courts “has now reached unmanageable levels”.
The courts have started issuing dates for civil case trials to be heard in 2031.
This is a matter Black Lawyers Association president Nkosana Mvundlela raised concerns about last month in an interview with Business Day.
Reacting to Mlambo’s proposal, Mvundlela said the move by the judge president was necessary to ensure “justice is not delayed” further for members of the public.
“Now there needs to be a discussion on who is going to pay the mediator. Those are fine-print details that we are going to discuss with the judge president,” he said. “We are pro-mediation where it is going to solve a lot of issues.”
He said judges were feeling the brunt of the situation.
“We have less than 300 judges in the country. The lack of judges is increasingly becoming a problem because the current judges are suffering from burnout because they have a lot of matters and they do not finish them timeously. They will start writing poor-quality judgments because they are under pressure to produce more work where they are fewer themselves,” Mvundlela said.
“The issue of hiring more judges is not negotiable.”
This is a long-standing call in the judiciary for the government to increase the budget for the office of the chief justice to hire more judges.
“In Limpopo a new High Court with divisions has less than 10 judges. It is the same situation in Mpumalanga. The third arm of government is the judiciary and it is under-resourced,” Mvundlela said.
“Democracy is in trouble. We cannot talk about the rule of law where people cannot access courts.”
Delaying justice could mean some people die without courts delivering on its function. “Things are bad, members of the public are given dates of 2032. If you are given that date and your client is 72 years old, you are not guaranteed that your client will be alive at that time,” Mvundlela said.
“Members of the public are denied justice because they are not given access to court simply because of the lack of judges.”
Legal analyst and Legal Practice Council deputy chair Llewelyn Curlewis concurred that the high courts needed more judges urgently to solve the problem.
Curlewis, who is practising lawyer, described the caseload situation as “ridiculous”.
“People cannot wait six years for cases to be heard. We do not have enough judges regardless of the mediation proposal. Even for the remainder of the cases we still do not have sufficient number of judges.
“We need to appoint more judges expeditiously. The sooner we do it, the better.”
He raised concerns when the public does not get justice from courts this triggers people to take law into their hands.
“From a constitutional perspective everybody has a right to a speedy trial and that is not what is happening currently. That is concerning because that means people will not go to the courts to have the issues resolved but take the law into their own hands when you have that then you have chaos on your hands. That is the ripple effect.”
The Law Society of SA (LSSA) said it had been a part of the collaborative process in the implementation of the mediation process and supported the proposal.
“Legal Practitioners have expressed concerns on the state of the court rolls particularly in the Gauteng Division and it goes without saying that a long wait in the allocation of any matter and its finalisation has an impact on access to justice,” the organisation said.
“LSSA, at every opportunity in engaging with the government and the judiciary, continues to implore the government for the capacitation of the judiciary through permanent appointments of judges and acting appointments.”
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