In Conversation With Surprise Vuma (SMV attorneys inc)
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claimants against the Road Accident Fund (RAF), has filed a legal challenge against a recent directive enforcing mandatory mediation for civil trials in the Gauteng Division of the High Court.
The group is asking the court to declare the directive unconstitutional and invalid, and is seeking an interim order to prevent Judge President Dunstan Mlambo from continuing to implement the directive until the Constitutional Court rules on the matter.
In an affidavit submitted with the application, Advocate Justin Erasmus, PIPLA chairperson, argues that the new practice directive is unworkable. Under Judge Mlambo’s directive—introduced in mid-April 2024—no trial dates will be issued for civil cases unless the parties first undergo mediation. Only if mediation fails, and a certificate confirming such failure is provided, will the court consider scheduling a trial.
The directive aims to reduce the heavy backlog of cases in Gauteng’s overburdened courts. Judge Mlambo has stated that a large number of cases—particularly RAF-related claims—are often settled on the day of trial, contributing to inefficiencies in the court system. The Gauteng High Courts are currently understaffed, with no new judicial appointments made since 2009, despite a rising caseload.
However, the applicants argue that the directive unfairly penalizes litigants who have waited years for their court dates. They fear losing access to trial if they cannot complete or afford mediation. Erasmus emphasized the financial burden the process places on vulnerable individuals, noting that many claimants cannot afford the costs of compulsory mediation.
“This is a matter of public interest,” Erasmus said. “Poor and vulnerable people in Gauteng, who already face barriers to justice, will be severely prejudiced. Their constitutional right to access the courts will be violated.”
He also cautioned that the additional layer of mediation could lead to higher overall legal costs if mediation fails and the case must proceed to trial. “Litigation could become even more expensive than it is now,” Erasmus added.
PIPLA further argues that the idea of compulsory mediation is not consistent with established South African legal principles, where mediation is typically voluntary. Erasmus insists that while backlogs are a serious issue, under-resourcing of the judiciary should not come at the expense of litigants' rights.
In a related matter, a Durban woman who was left paraplegic and financially destitute after a car accident has filed a separate urgent application. She was injured six years ago and was finally allocated a court date in 2023, with her matter scheduled for hearing in August this year. Under the new directive, her case must now first go through arbitration.
She, too, raised concerns about affordability, stating that she relies on a social grant and may not be able to pay for mediation services.
Both cases highlight growing tensions between the drive for court efficiency and the need to ensure equitable access to justice—particularly for those who can least afford delays or additional costs.
The group is asking the court to declare the directive unconstitutional and invalid, and is seeking an interim order to prevent Judge President Dunstan Mlambo from continuing to implement the directive until the Constitutional Court rules on the matter.
In an affidavit submitted with the application, Advocate Justin Erasmus, PIPLA chairperson, argues that the new practice directive is unworkable. Under Judge Mlambo’s directive—introduced in mid-April 2024—no trial dates will be issued for civil cases unless the parties first undergo mediation. Only if mediation fails, and a certificate confirming such failure is provided, will the court consider scheduling a trial.
The directive aims to reduce the heavy backlog of cases in Gauteng’s overburdened courts. Judge Mlambo has stated that a large number of cases—particularly RAF-related claims—are often settled on the day of trial, contributing to inefficiencies in the court system. The Gauteng High Courts are currently understaffed, with no new judicial appointments made since 2009, despite a rising caseload.
However, the applicants argue that the directive unfairly penalizes litigants who have waited years for their court dates. They fear losing access to trial if they cannot complete or afford mediation. Erasmus emphasized the financial burden the process places on vulnerable individuals, noting that many claimants cannot afford the costs of compulsory mediation.
“This is a matter of public interest,” Erasmus said. “Poor and vulnerable people in Gauteng, who already face barriers to justice, will be severely prejudiced. Their constitutional right to access the courts will be violated.”
He also cautioned that the additional layer of mediation could lead to higher overall legal costs if mediation fails and the case must proceed to trial. “Litigation could become even more expensive than it is now,” Erasmus added.
PIPLA further argues that the idea of compulsory mediation is not consistent with established South African legal principles, where mediation is typically voluntary. Erasmus insists that while backlogs are a serious issue, under-resourcing of the judiciary should not come at the expense of litigants' rights.
In a related matter, a Durban woman who was left paraplegic and financially destitute after a car accident has filed a separate urgent application. She was injured six years ago and was finally allocated a court date in 2023, with her matter scheduled for hearing in August this year. Under the new directive, her case must now first go through arbitration.
She, too, raised concerns about affordability, stating that she relies on a social grant and may not be able to pay for mediation services.
Both cases highlight growing tensions between the drive for court efficiency and the need to ensure equitable access to justice—particularly for those who can least afford delays or additional costs.
