A Pretoria law firm has turned to the Constitutional Court in an urgent bid to overturn a directive introducing mandatory mediation in the Gauteng High Court.

An IoL report notes that since last week, the Johannesburg and Pretoria divisions of the Gauteng High Court 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.

Gert Nel Inc Attorneys, through its director Gert Nel, questioned whether this move was 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 was being challenged, the fundamental basis of this application was 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 Dunstan 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.

IoL reports that Nel He asked the Constitutional Court to thus declare the directive to be constitutionally invalid.

The directive is borne out of the overwhelming insistence for trial dates by plaintiffs’ legal representatives for matters that have no triable issues and, as a result, have no need for adjudication by a judge,' it explained.

The OCJ said less than 10% of matters on the trial roll of the division require a judge to resolve them through judicial adjudication.

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.

Full IoL report