MYRON MER | Is heading to court the only ‘serious’ way to resolve a dispute?

The high court in Gauteng, which handles almost half of South Africa’s civil litigation, is on the ropes. Trials are being set down for dates five, even six years into the future. It’s got to the point where for many people, the right to access a court, something section 34 of the constitution guarantees, is starting to feel like an empty promise.

In my view, we’re well past a backlog. We’re looking at a system that, frankly, has seized up. 

Judge president Dunstan Mlambo has stepped in with a directive aimed at trying to fix the crisis, making it compulsory for parties to mediate before a case can be set down for trial. 

On paper, it makes a lot of sense. Internationally, mandatory mediation has helped ease pressure on courts. We’ve seen it work in parts of the US, the UK and Italy. Cases settle earlier, court time is freed up, and people spend less time and money fighting battles that could have been resolved around a table rather than across a courtroom. 

Here, the logic is the same. With about 85% of civil matters settling on the doorstep of the courts after parties have spent years and fortunes preparing for trial, the thinking is clear — get people to talk early, settle early and unclog the system. 

Mandatory mediation only works if you have enough properly qualified mediators to handle the volume. In my view, right now, we don’t.

But theory and reality are two different things.

Already, a firm of attorneys in Pretoria has taken the directive to the Constitutional Court, arguing that it infringes on the constitutional right of access to justice. They say it puts up extra hurdles for litigants who are already battling with delays. And they’re not wrong to raise concerns. If these challenges pick up steam, the courts could find themselves tied up fighting about mediation instead of freeing themselves up to actually hear cases. 

There’s also the practical side nobody can ignore. Mandatory mediation only works if you have enough properly qualified mediators to handle the volume. In my view, right now, we don’t. It’s a bit of a free-for-all. Without proper regulation and enough trained mediators, mediation could itself become another bottleneck, just one more hurdle for frustrated litigants to clear. 

Then there’s the attitude problem. 

Even though Rule 41A of the Uniform Rules of Court has technically made mediation part of the conversation since 2020, most practitioners still treat it like a box to tick. Many lawyers, and plenty of clients too, still see going to court as the only “serious” way to resolve a dispute. That mindset has to change. And unless judicial officers also take mediation seriously and enforce it properly, there’s a risk the directive becomes a paper exercise with no real teeth. 

The phased rollout is structured but complex. 

• All trial dates set for 2025 in non-RAF matters will proceed as scheduled, without mediation being a prerequisite.
• In RAF matters, trial dates for Terms 3 and 4 of 2025 will only proceed if a mediation report is filed seven court days before the trial date; otherwise, the case will be struck off without costs. 
• All 2026 trial dates for RAF matters have been withdrawn. Parties must reapply with a mediation report. 
• For non-RAF matters with 2026 trial dates, those dates provisionally remain, but a mediation report must be filed 30 court days before trial, failing which the matter will be struck off. 

The phased rollout is smart but complex. From  January 1 2027, a clean slate comes into effect: 

• All existing trial dates are withdrawn. 
• Fresh trial enrolments will require compliance with the mediation protocol. 
• New trial dates must be granted within 18 months of a compliant application. 

There’s no question that if it’s done properly, mandatory mediation can help speed up justice, save litigants money, and free up badly needed court time. But that’s a big “if”. Getting it right means more than just issuing a directive. It means building real systems, setting proper accreditation standards, training mediators, and, most difficult of all, shifting the deep-rooted culture of the litigation profession. 

Mlambo’s directive is a bold move. He deserves credit for stepping up and trying to confront a system that simply can’t carry on the way it has been. But fixing Gauteng’s civil courts is going to take a lot more than bold moves. It’s going to take systemic change. 

In my opinion, the directive is going to be tested, not just in the Constitutional Court, but in courtrooms, in boardrooms and across countless negotiations where old habits die hard. That’s where the real battle will be fought and won or lost. 

• Myron Mer is a director at Fluxmans Attorneys

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