logo
Pretoria law firm challenges mandatory mediation directive in Constitutional Court

Pretoria law firm challenges mandatory mediation directive in Constitutional Court

IOL News28-04-2025

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.
Video Player is loading.
Play Video
Play
Unmute
Current Time
0:00
/
Duration
-:-
Loaded :
0%
Stream Type LIVE
Seek to live, currently behind live
LIVE
Remaining Time
-
0:00
This is a modal window.
Beginning of dialog window. Escape will cancel and close the window.
Text Color White Black Red Green Blue Yellow Magenta Cyan
Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan
Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan
Transparency Transparent Semi-Transparent Opaque
Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps
Reset
restore all settings to the default values Done
Close Modal Dialog
End of dialog window.
Advertisement
Next
Stay
Close ✕

Orange background

Try Our AI Features

Explore what Daily8 AI can do for you:

Comments

No comments yet...

Related Articles

Borders signal the edge of a nation, they must never be the edge of the law
Borders signal the edge of a nation, they must never be the edge of the law

Daily Maverick

timea day ago

  • Daily Maverick

Borders signal the edge of a nation, they must never be the edge of the law

The management of borders represents a critical point where state authority meets human rights and national security concerns. Borders in both the United States and South Africa serve as enforcement areas that test constitutional law boundaries and state authority limits through ethical governance challenges. Despite the existence of strong constitutional frameworks, borders often emerge as zones where power is exercised with minimal oversight and have increasingly become the subject of heated debates under the pressure of opposing interests. Judicial mechanisms offer post-facto challenges to abuse, but don't deter injustice from occurring before any intervention takes place. At stake are not only questions of territorial control, but fundamental civil liberties. While judicial mechanisms exist to challenge abuse, their retrospective nature means infringement is effected before remedy is available. A meaningful solution requires proactive legal training, deeper transparency and a strong culture of accountability. South Africa: consolidation with broad powers The formal establishment in April 2023 of the Border Management Authority (BMA) marked a significant structural shift in South Africa's border enforcement as envisioned in terms of the Border Management Authority Act, 2020. The launch of the BMA aimed to unify fragmented tasks within immigration, customs and security functions as a bold step towards operational efficiency. However, with consolidation comes concentration of power and, arguably, insufficient legal guardrails are in place. Current training of South African border agents appears to place overwhelming emphasis on security protocols, logistics and document verification. Detailed information about the standard training for officials has not yet been publicly documented. At the front lines, however, critical dimensions such as constitutional rights, international refugee protections and administrative justice remain underdeveloped or entirely absent. This knowledge gap opens the door for discretionary overreach. Border agents routinely make major impactful decisions, often without sufficient legal grounding. While the Constitution guarantees rights to both citizens and non-citizens, the implementation at borders of those rights remains inconsistent. Legal training should be a vanguard defence against such inconsistency, focusing not only on the technicalities of immigration law but also on values such as proportionality, rationality and dignity, all central to South Africa's constitutional vision. A training curriculum that includes real-world case studies and evolving jurisprudence would provide border officials with the legal literacy necessary to act effectively and lawfully. Borders are not lawless zones South African jurisprudence offers strong guidance. The Supreme Court of Appeal determined in Minister of Home Affairs v Watchenuka (2004) that constitutional rights apply to non-citizens and invalidated the idea that state power at borders escapes constitutional oversight. The Constitutional Court's decision in Dawood v Minister of Home Affairs (2000) established the necessity for defined guidelines to limit discretionary immigration actions while affirming that arbitrary decisions stand in opposition to constitutional principles of governance. In Gaertner and Others v Minister of Finance (2014), the court struck down provisions permitting customs officials to conduct warrantless property searches. While emphasising judicial oversight and opposing unchecked surveillance at borders, the court reinforced that, even at the border, constitutional safeguards must apply. Collectively, these cases make clear that South African borders are not constitutional vacuums. They are spaces where state interest and individual rights must be carefully balanced, a principle that must be embedded in policy, training and enforcement alike. The US: oversight in theory, discretion in practice US border agents carry out their duties under the Fourth Amendment's 'border search exception', which permits searches at international borders without warrants. While initially designed for luggage and customs inspections, the doctrine has expanded to include searches of electronic devices, sparking privacy concerns. In United States v Cotterman (2013), the Ninth Circuit introduced a distinction between 'basic' and 'forensic' device searches, requiring reasonable suspicion for the latter. This case was critical in defining the legal thresholds for state intrusion into digital privacy. Yet, reasonable suspicion, a circumstantial belief based on specific facts, remains a vague and flexible standard. Oversight mechanisms, while present, often fail to prevent real-world overreach. On paper, the US legal framework provides stronger judicial review than in many jurisdictions. The Fourth Amendment, the exclusionary rule and civil rights litigation offer meaningful remedies. But these mechanisms are largely retrospective. They rely on the injured party to challenge misconduct after it has already occurred, a process few travellers are equipped to initiate. Even with oversight, systemic issues such as racial profiling, device confiscation and prolonged detentions persist. Lessons from Cato's Letters Cato's Letters, a series of 18th-century essays written by Trenchard and Gordon, warned eloquently of the dangers of unaccountable power. Their call for liberty, limited government and the rule of law echoes loudly in today's border enforcement regimes. They warned that unchecked authority, even in the name of security, leads inevitably to oppression and abuse. Their defence of transparency, legal constraint and civic vigilance remains a powerful lens through which to evaluate modern border agencies. Whether it is US Customs and Border Protection or South Africa's BMA, concentrated authority without immediate oversight fosters environments where individual rights are routinely subordinated to institutional convenience or, even worse, ignorance. Technology is not a silver bullet In the US, billions have been spent on advanced border technologies: facial recognition, drone surveillance, biometric scanning and AI-powered analytics. These tools increase efficiency, but also amplify state power, and raise serious concerns about surveillance overreach and algorithmic bias. South Africa, while historically underresourced in this domain, is catching up. Home Affairs Minister Leon Schreiber has recently emphasised the digitisation of border processes and initiated a drone surveillance programme aimed at improving security along hard-to-patrol land borders. These innovations are promising, but require legal frameworks and ethical training to ensure that they enhance, not undermine, accountability. Technology alone cannot substitute for legal safeguards, ethical enforcement and public scrutiny. Without strong norms and oversight, technology simply makes it easier to abuse power faster and more efficiently. South Africa's systemic challenges Corruption remains a long-standing problem in South Africa's border management system. With a land border network spanning more than 4,700km, complex challenges in border management, surveillance and cross-border movement are common. Beit Bridge and Lebombo, the two busiest land border posts by movement of both people and goods, have gained notoriety for their involvement in bribery schemes, fostering illegal and fraudulent migration, and smuggling operations. Yet, these incidents are not exclusive to those posts. Both law enforcement operations and public trust in government institutions suffer from these prevailing situations. While integration under the BMA may help streamline accountability, corruption is a human problem, solved not by structure alone but through culture, leadership and training. The US, too, has struggled with ethical lapses in border enforcement, including documented abuses during the Trump administration involving family separations, inadequate detention conditions and racially biased screening practices. In both countries, external accountability mechanisms – including independent oversight bodies, public reporting and whistle-blower protections – are essential to preventing and addressing misconduct. Training is the real infrastructure Perhaps the clearest point of divergence between the US and South Africa lies in training systems. In the US, border agents attend standardised courses at the Federal Law Enforcement Training Centers covering constitutional law, immigration enforcement and ethical decision-making. By contrast, in South Africa training has been historically fragmented. The establishment of the BMA has offered an opportunity to establish standardised, law-based training that integrates legal, technical and ethical components. Given the BMA's expanded scope, this is not optional; it should be critical. A border agent without sufficient legal literacy is not just a weak link in enforcement but a risk to the rights of every traveller, migrant or citizen they encounter. Too often abuse is reported and remains unchecked. The human element in reform Ultimately, border enforcement is about people, those enforcing the law and those subject to it. The most sophisticated policy or technology will fail if the individuals tasked with implementation are poorly trained, poorly supervised or poorly supported. Ethics, empathy and law must inform every aspect of border interaction. Both the US and South Africa must invest not only in infrastructure but in human capital. Agents must be trained to understand not only how to detect threats, but how to respect rights. Performance metrics should include not just seizures or interdictions, but fair treatment, procedural integrity and respect for dignity. The front lines of democracy and eternal vigilance Border zones are not places outside the law. They are 'stress tests' for democracy and constitutionalism. In South Africa and the United States alike, the challenge is not whether the state can exercise power at the border, but how that power is constrained, overseen and made just. Legal training, transparency and accountability are not luxuries; they are the foundation of legitimate enforcement. As Cato's Letters reminds us, liberty depends not only on institutions but on 'eternal vigilance'. DM

Cape Town mayor takes Ramaphosa and government to ConCourt
Cape Town mayor takes Ramaphosa and government to ConCourt

TimesLIVE

timea day ago

  • TimesLIVE

Cape Town mayor takes Ramaphosa and government to ConCourt

City of Cape Town mayor Geordin Hill Lewis has approached the Constitutional Court challenging government and President Cyril Ramaphosa over the Public Procurement Act which he claims will slow down service delivery and undermine the constitutional autonomy of local government. Hill-Lewis said the challenge in the apex court points out problems which render parliament's adoption of the bill unlawful. The bill was enacted in July 2024 with the Presidency announcing it complies with the stipulation in the constitution that 'contracting of goods and services by organs of state in all spheres of government must occur in accordance with a system which is fair, equitable, transparent, competitive and cost-effective'. The Presidency at the time said national legislation must prescribe a framework within which a procurement policy must be implemented. The bill was intended to address weaknesses in the procurement of goods and services by organs of state that have in the past enabled corruption, including state capture. Previously, the legislation regulating procurement was said to be fragmented and constraining. Hill-Lewis pointed out that seven of nine provinces did not have lawful final mandates to vote on the bill in the National Council of Provinces (NCOP). He added there were inadequate public participation timeframes and notice periods by provinces and the NCOP. There was also incorrect information in reports considered by the NCOP and National Assembly and the Assembly failed to consult on changes to chapter 4, did not consider all public comments and failed to comply with the rules for introducing a bill. 'We believe this [act] should be invalidated due to fatal shortcomings in public participation and parliament's procedures. Beyond these issues, it is vital that any new consideration of the [act] takes into account the huge red tape burden it will place on local government and the unconstitutional interference it permits in municipalities. 'At a local level, we often have to procure fast to respond to urgent water, sanitation, electrical, waste and environmental issues. This [act] impedes the ability to respond swiftly to local needs by introducing more red tape to complicate procurements. This inefficiency will have a direct effect on service delivery to residents.'

eThekwini Municipality faces backlash over R23 million legal fees for R30 million payout
eThekwini Municipality faces backlash over R23 million legal fees for R30 million payout

IOL News

timea day ago

  • IOL News

eThekwini Municipality faces backlash over R23 million legal fees for R30 million payout

EThekwini Municipality is expected to pay R23 million extra after losing a legal battle to defend R30 million claim Image: Willem Phungula The eThekwini Municipality has defended its spending of R23 million in defending a R30 million payout. Last week, the city lost a bruising legal battle in the Constitutional Court in trying to overturn the lower courts' orders, which had dismissed its bid with costs. The latest ruling drew the ire of political parties and Cooperative Governance and Traditional Affairs MEC Reverend Thulasizwe Buthelezi, who also categorised the city's costs as wasteful expenditure, which he said must be recovered from the officials responsible for them. The ruling also drew attention to the city's former deputy manager, Sibusiso Makhanya, who, through his attorneys, penned a letter to Mayor Cyril Xaba asking him to take action against City Manager Musa Mbhele, whom he said was liable for this wasteful expenditure. Makhanya gave the mayor five days to take action or face potential legal consequences. He argued that the city charged him for causing it to incur costs similarly; therefore, to be consistent, the city must also charge Mbhele. The company, Daily Double Trading, has already calculated its total costs to R53 million and demanded that the city pay within five days. In the city's response to Makhanya, it defended the legal costs, saying the monies expended in defending the ratepayers' money did not constitute wasteful expenditure. 'There has never been an instance where the legal costs, for work done by the legal representatives, constituted wasteful expenditure, irrespective of the court outcome,' read the letter. The city further stated that the Executive Committee (Exco) fully supported the decision to approach the Constitutional Court and the Exco's resolution was reported to the council meeting of March 31, which also supported it; therefore, there was no need to refer the matter to the Financial Misconduct Disciplinary Board which Makhanya called for. Makhanya dismissed the city's assertion that the cost does not constitute wasteful expenditure, saying in terms of the Municipal Finance Management Act, fruitless expenditure is defined as an expenditure that was made in vain and would have been avoided had reasonable care been exercised. He said if the mayor does act, he would go to court as he indicated in the letter. The municipality has been in a legal battle since 2018 with the electrical company, Daily Double Trading, known as Pholobas. The company claimed it was legally blacklisted by the city and had done work for the city to the value of over R40 million. After the municipality objected, the business was granted a preservation order. The sheriff attached the city's assets, but the parties reached an out-of-court settlement in which the city, through its attorney, allegedly promised to pay the company R30 million, which the company accepted, but the city later disputed. The matter went to court again in 2021, however, the city did not oppose it, and the court ordered the city to pay R30 million with 10% interest from 2018. The municipality filed a leave to appeal, which was dismissed, and went straight to the Supreme Court of Appeal, which also dismissed the matter. [email protected]

DOWNLOAD THE APP

Get Started Now: Download the App

Ready to dive into the world of global news and events? Download our app today from your preferred app store and start exploring.
app-storeplay-store