The Constitutional Court has thrown out an urgent application for direct access brought by a firm of attorneys in a bid to overturn a directive introducing mandatory mediation for civil trials at the Gauteng High Court, reports News24.

Gauteng Judge President Dunstan Mlambo introduced the new measure as the court has been buckling under the weight of a massive backlog of civil trials. Earlier this year, the situation reached crisis levels, with the earliest available dates as far off as 2031 in some instances.

In an effort to address the issue, Mlambo issued a draft directive for public comment in March in which he proposed introducing ‘obligatory mediation’, which would require litigants to first try and resolve their disputes via mediation before their matters were set down for trial.

He further said the majority of cases on the civil trial roll could be resolved through alternative means, with 85 percent thereof settled on the morning of the trial date.

A final directive, together with a protocol for mediation, was then issued last month. All trial dates after 1 January 2027 were further withdrawn.

Regarding Road Accident Fund (RAF) matters – which have historically made up a considerable portion of the civil rolls – all trial dates after 1 January 2026 were also withdrawn. Gert Nel Incorporated attorneys – which specialises in RAF claims and other personal injury matters – subsequently approached the Constitutional Court. 

In the papers, the firm’s director, Gert Nel, said at the heart of their case was ‘uncertainty regarding the power of a head of court to issue a practice directive, which purports to overrule, amend or contradict duly promulgated legislation’.

He argued that the Judge President did not have the power to mandate compulsory mediation via a practice directive and protocol, according to News24.

While Nel acknowledged ‘the well-intentioned innovation by the Judge President in the name of efficiency’, he argued that ‘for many litigants – particularly personal injury claimants, victims of medical negligence and other ordinary people seeking relief - mandatory mediation introduces additional cost, delay and procedural burden’.

In an order handed down on Monday, however, the Constitutional Court found no case for direct access had been made.

However, the firm’s Dylan Oelefse said they would now pursue the matter in the High Court.

In the meantime, Judges Matter’s Mbekezeli Benjamin said given that there was a shortage of judges in SA, the new directive would ‘try and address some of those concerns by making sure only those cases that are ready to go to trial actually proceed in front of a judge’.

Benjamin acknowledged that there were questions about the directive’s constitutionality, meanwhile, and said the courts would resolve these.

Full News24 report