For years, SA’s courts have been battling serious backlogs in cases. Matters take years before they are heard and concluded before being appealed and reviewed. Judicial officers and their staff are overworked, and suffering from burnout.
The situation is especially bad in civil trials. According to a circular from Dunstan Mlambo, judge president of the Gauteng division, some cases are only enrolled for hearing in 2031, a clearly untenable situation. This compromises access to justice as contemplated in the constitution.
Mlambo, the leading light in innovation, has issued a directive asking civil trials to only be enrolled after mediation. Put differently, civil cases can only be heard after the failure of mediation. This means that mediation will become mandatory for new cases.
This practice, which becomes effective on April 14, will only apply to the Gauteng division. Only matters requiring judicial adjudication will make it to the court roll. Criminal matters will not be covered by this directive.
This is a welcome directive. It should be applauded by the legal profession and litigants.
It will force litigants to approach courts as a last resort. The first step would be to consider alternative means of dispute resolution.
This will significantly reduce the workload of judges.
SA’s courts are understaffed. They need more judges. The process of recruiting new judges is tedious and too protracted. Also, brilliant minds tend to not make themselves available because of the judges’ recruitment process.
“Currently the majority of cases on the civil trial roll are capable of resolution through mediation, settlement and other alternative dispute resolution means. These are the cases that take up a sizeable portion of the civil trial roll and inevitably cause deserving cases to wait for inordinate long periods for a hearing. The statistics of cases accommodated on the civil trial roll of this division evince that 85% of them are settled on the morning of the trial date,” according to the circular motivating for obligatory mediation.
This is shocking and only benefits lawyers.
Mlambo is correct to observe that it would be irresponsible for him, as head of the division, to allow the status quo to continue. A solution is required.
Increasingly, litigants are also preferring mediation over the court route. Not only is the latter expensive, but it guarantees no success. Few courts have specialist skills to adjudicate complex matters such as commercial disputes.
SA is fortunate to have a depth of professional mediation services.
Like any other innovation, the process can still be abused. It will require vigilance in application. There may also be teething problems in the beginning.
Mlambo, who failed in his bid to join the Constitutional Court, needs to be commended for improving the efficiency and effectiveness of the courts.
He has significantly improved case management in his division.
In the long term, however, the country cannot avoid the obvious problem: the shortage of judges. More judges are needed, and the process of recruiting them needs to be less cumbersome than the current method, which includes public interviews and grandstanding by politicians.
Other provinces need to study the implementation of Mlambo’s reforms and learn from him.
The lesson from Mlambo’s leadership is simple: not all problems require expensive solutions. Some, like backlog reduction, need imagination.
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