Latest news with #PersonalInjuryPlaintiffLawyersAssociation
Eyewitness News
5 days ago
- Politics
- Eyewitness News
ConCourt throws out NPO's application to have Mlambo's directive declared unconstitutional
JOHANNESBURG - The Constitutional Court has thrown out an application by the Personal Injury Plaintiff Lawyers Association (PIPLA) to have a directive by the Gauteng Judge President Dunstan Mlambo, declared unconstitutional. Earlier this year, Mlambo introduced the alternative dispute resolution mechanism for all civil trials in an attempt to ease the caseload in the division. The move was met with legal challenges as PIPLA headed to the Constitutional Court, asking for direct access and to have Mlambo's directive invalidated. Section 167 subsection 6(a) of the Constitution allows persons, when it is in the interests of justice and with leave of the Constitutional Court, to bring a matter directly to the apex court, making it a court of first and last instance. In papers, PIPLA argued that granting it direct access was in the interests of justice to ensure that parties' rights to access the courts are safeguarded as enshrined in Section 34 of the Constitution. The association submitted that the directive, which made mediation compulsory in civil trials, leaves those who cannot afford the alternative dispute resolution mechanism stripped of the fundamental right. However, in a short order, the Constitutional Court said it had considered the application and concluded that no case had been made out for direct access and refused its application.
Eyewitness News
20-05-2025
- Politics
- Eyewitness News
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.
IOL News
13-05-2025
- Politics
- IOL News
Personal injury lawyers challenge new mediation directive in Constitutional Court
Advocate Justin Erasmus CEO of of the Personal Injury Plaintiff Lawyers Association. Image: Supplied THE Personal Injury Plaintiff Lawyers Association (PIPLA), representing about 400 personal injury lawyers, has turned to the Constitutional Court over the legality and constitutionality of the new practice directive mandating compulsory mediation in civil matters in the Gauteng Division. PIPLA chairperson Advocate Justin Erasmus said while the directive may have been introduced to ease the mounting pressure on Gauteng's civil trial roll, it does so at a cost too high for justice to bear. 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 issued the draft directive in March, calling for objections from the public, lawyers, and interested parties. It recently came into force despite threats to challenge the move in court. 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. The Office of the Chief Justice explained that there were no alternatives as the Gauteng Divisions simply cannot cope with the heavy workload. In their application for direct urgent access to the Constitutional Court, PIPLA noted that they took part in the consultative process with Judge Mlambo by submitting commentary on the Proposed Practice Directive and Proposed Protocol. They have maintained that the Practice Directive is 'unconstitutional, ultra vires and unworkable'. 'This directive places an intolerable burden on litigants - many of whom are road accident victims - by making their right to a trial dependent on taking part in a mediation process that is expensive and often hard to access. In doing so, this infringes on their fundamental constitutional rights, including the right of access to courts as outlined in Section 34 of the Constitution.' They argue the volume of mediations will be unmanageable, and there is every reason to believe that the limited available mediation resources will not cope with the caseload. 'The directive claims… that 85% of matters settle on the morning of the trial. PIPLA does not have access to these statistics, but the experiences of its members paint a different picture. Only 7.8% of PIPLA's members experience settlement of between 80 to 100% of their cases on the day of the trial. Significantly, 53.6% of the members' cases do not settle on the day of the trial,' court documents read. PIPLA argues the directive goes against the Constitution, goes beyond the powers allowed by law, and won't work in practice. PIPLA said it was particularly concerned that the directive disproportionately disadvantages indigent plaintiffs. 'The RAF has capped its mediation contribution at R15 000, yet typical mediation costs in complex personal injury cases can easily exceed R30 000. Plaintiffs, already financially vulnerable, are now forced to carry these costs upfront or risk losing their trial date,' Erasmus said. PIPLA has called for the directive to be declared unconstitutional and set aside. Cape Times
