NPO challenges constitutionality of directive making mediation compulsory
JOHANNESBURG - A non-profit organisation (NPO) challenging the constitutionality of a directive making mediation compulsory says there is no capacity for the exercise.
Gauteng Judge President, Dunstan Mlambo, introduced the practice in April in an attempt to reduce the backlog in cases in the division.
The Personal Injury Plaintiff Lawyers Association (PIPLA) says there are between 250 to 300 road accident fund matters on the court roll per week in the Gauteng division.
It argues that there aren't enough mediators to handle such a caseload and wants the Constitutional Court to declare the directive unconstitutional.
The association is sceptical that mediators would have the resources to cope with a growing caseload that the high court, with settled systems and judicial officers, has continuously struggled to keep up with.
The protocol provides that as a minimum requirement for approval as a mediator, one must have had at least five previous matters in which they have acted as a lead mediator.
This, PIPLA argues, further limits the pool of existing mediators, while the requirement that a claims manager from the road accident fund also be present during the process is a factor that further acts against the directive, as there aren't enough officers to participate in such a process.
The organisation asks the Constitutional Court to declare the directive invalid to the extent of its inconsistency with the Constitution and, if necessary, review the directive and set it aside under the Promotion of Administrative Justice Act.
VOLUNTARY MEDIATION
The Gauteng High Court handles about 50% of the cases litigated in the country, while the number of judges in the division has not increased since 2008.
Section 173 of the Constitution stipulates that the Constitutional Court, the Supreme Court of Appeal and the high courts each have the power to protect and regulate their processes and to develop the common law, taking into account the interests of justice.
But PIPLA argues that it is impermissible to use this provision to compel parties to participate in compulsory mediation.
It adds that courts can only encourage and facilitate mediation, but not direct parties to participate in what should be a voluntary process.
The organisation says compelling parties to engage in such an exercise would achieve nothing but to add to the costs borne by the parties and damage the perceived effectiveness of the alternative dispute resolution process.
In its request for a declaration of constitutional invalidity, the organisation says the directive constitutes an unacceptable and unjustifiable limitation of litigants' rights to access the courts.
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IOL News
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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 ✕ The motion was presented by Democratic Alliance (DA) Councillor Yusuf Mohamed and seconded by United Democratic Movement (UDM) Councillor Bongani Maqungwana. 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'I still quibbled to the minister... that we must set 31 December as a deadline – a Christmas present for citizens. But now we're almost a year in with no progress.' Smith said the City did not receive real-time crime intelligence from SAPS, which impacted the effectiveness of its operations. 'We only see crime stats months later – it's a history lesson, not a tool for public safety.' He also noted the growing impact of extortion on City operations. 'The contractors are saying, 'we're not safe'.' Smith said over 400 officers were now escorting service teams. 'We are now at the point where every service team may need a police escort. That doubles our operational cost. It's unsustainable.' He said the City had assisted in certain kidnapping cases but was still limited in its scope. 'I cannot go to a public meeting without someone raising this. And I'm tired of telling people saying 'it's not within our powers'.' The Economic Freedom Fighters (EFF) opposed the motion. Councillor Banzi Dambuza said: "We are against the devolution of policing powers to the City. The DA has proven that they are not able to deal with issues of crime. They are utilising this as a bargaining chip.' He added, 'The City came with a budget that will give six law enforcement personnel per ward, whereas they know that the major issue is within black and coloured areas. "The DA has failed to deal with gangsterism, extortion, and any other issue related to crime. As the EFF we are anti the move of SAPS going to the City, who are entering the position of taking under the wing, making sure they use the power which will be abused; misused and not used to the benefit of our poorest of the poorest.' GOOD Party councillor and Caucus Whip Jonathan Cupido also expressed concerns about the proposal. 'As GOOD, we do not oppose decentralisation. There is a compelling argument for bringing decision-making closer to communities, especially where services are failing. But to suggest that devolving select policing functions will resolve Cape Town's crisis of violent crime, without simultaneously addressing the root causes of that violence, is dangerously misleading,' he said. Between January and March 2025, 1,068 people were murdered in the Western Cape, with 81% of those killings taking place in Cape Town. Gang-related killings in the City accounted for 197 of the 240 gang murders recorded nationally during that period. Cupido said, 'These are the outcomes of systemic failure. A result of entrenched poverty, youth unemployment, addiction, and the spatial legacy of apartheid that continues to shape life in the Cape Flats. These are the conditions in which gangs thrive, not because of a lack of devolved powers, but because we continue to treat crime as a policing problem rather than a social one.' The motion will be tabled at the next full Council meeting for formal adoption.
