Pretoria law firm challenges mandatory mediation directive in Constitutional Court
Gert Nel, the head of a law firm that specialises in Road Accident Fund matters, has expressed his concerns over proposed plans regarding mandatory mediation for civil trials. He is now challenging the directive in the Constitutional Court.
Image: File
A Pretoria law firm has turned to the Constitutional Court for direct access to the highest court in the country in an urgent bid to overturn a directive introducing mandatory mediation in the Gauteng Division of the High Court.
Since last week, the Johannesburg and Pretoria high courts no longer allocate trial dates for civil cases (cases where evidence is being led, such as damages claims).
Litigants, who in these cases want a judge to determine their issues, must first prove that they have tried to resolve their issues via mediation.
A trial date will be allocated only if mediation does not resolve the issues, and they can prove via a certificate that they did try it.
Gauteng Judge President Dunstan Mlambo in March issued a draft directive and called for objections from the public, lawyers, and interested parties. While many vehemently opposed the directives, it came into force last week.
The Office of the Chief Justice explained that there are no alternatives as the Gauteng Divisions simply cannot cope with the heavy workload. Judge Mlambo also commented in his directive that the bulk of these cases are, in any event, settled on the day of the trial. Thus, the mediation route is the practical solution so that judges can be freed to adjudicate over other matters.
Gert Nel Inc Attorneys, through its director Gert Nel, questioned whether this move for mandatory mediation is constitutionally sound. In an affidavit accompanying his urgent application, Nel said there are constitutional limits on judicial power and the 'erosion of litigants' rights through unlawful judicial overreach'.
According to Nel, litigants, who include his clients, face tangible prejudice as they are now refused any court dates unless they can prove mediation in their matters was unsuccessful.
'Their cases have been stalled and even existing trial dates are in jeopardy.' Nel said even before the draft directive was made final, it was treated as being final. He said although the bar on allocating trial dates without first going the mediation route, the fundamental basis of this application is the uncertainty regarding the power of a head of court to issue a directive that purports to overrule legislation.
According to Nel, the head of the court - Judge President Mlambo in this case - lacks the power under the Constitution and the Superior Courts Act to mandate compulsory mediation for all civil trials in the Gauteng division. He asked the Constitutional Court to thus declare the directive to be constitutionally invalid.
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