Dunstan Mlambo makes mediation mandatory for civil cases before trial

Gauteng judge president Dunstan Mlambo made it mandatory on Tuesday for civil cases to go through mediation before trial as a measure to curb an “intolerable” caseload in high courts.

Mlambo issued a draft directive last month in which he proposed the introduction of obligatory mediation for civil cases before the court places the cases for trial, because the caseload for the high courts had “reached unmanageable levels”.   

The courts started issuing dates for civil case trials to be heard in 2031.

The office of the chief justice announced the implementation of the directive effective from Tuesday. “With effect from the date of this directive, no case shall be issued a trial date unless the request is accompanied by a report on the mediation as contemplated in the protocol,” Mlambo’s directive read.

The Road Accident Fund (RAF) cases — which fill the high courts’ rolls daily — allocated for 2026 have been withdrawn.

“All trial dates issued to cases against the RAF on dates from January 1 2026 are withdrawn. All such cases set down after that date must seek a fresh set-down date and the request must be accompanied by a mediator’s report,” the directive read.

RAF CEO Collins Letsoalo, speaking to the media this month, welcomed Mlambo’s plans, adding that most claimants’ cases against the fund ended up being solved through mediation. 

The directive applies only to civil trials and not criminal trials.

The office of the chief justice said the directive was issued following a “wide consultative process” by the division with law bodies, practitioners, mediation organisations, mediators and litigants in general.

“It is aimed at alleviating the backlogs and constraints that currently plague the division’s civil trial roll. The final directive takes into account all input and comments received from stakeholders,” the office said in a statement.

“The comments were mixed, including both objections and support for the draft directive, as well as input that sought to add technical variations to the proposed directive.”

While Mlambo’s plans were welcomed by legal associations and legal experts, many remarked it would not significantly decrease caseload.

Legal analyst and Legal Practice Council deputy chair Llewelyn Curlewis said the high courts needed more judges urgently to solve the problem.

“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 a sufficient number of judges.     

“We need to appoint more judges expeditiously. The sooner we do it, the better.”

Advocate Justin Erasmus, chair of the Personal Injury Plaintiff Lawyers Association (Pipla), said the real problem the judiciary experienced was the lack of judges, courtrooms and registrars.

When the draft directive was issued, Erasmus was not optimistic about the change.

“A sudden shift like this is unfair to plaintiffs who have already waited years for their day in court,” he said.

“From June, plaintiffs will only keep their trial dates if they can obtain a mediation certificate from the RAF or similar mediation body. We anticipate that, in most cases, this will be impossible.

“This means plaintiffs who initiated legal action as far back as 2019 or 2020, and secured trial dates for late 2025 or early 2026, could be removed from the roll — despite having followed all required legal steps — simply because they cannot comply with an unworkable new requirement.”

sinesiphos@businesslive.co.za