COURTROOMS ON HOLD: MEDIATION TAKES THE LEAD IN GAUTENG
The Gauteng Division of the High Court, South Africa’s busiest judicial division, has launched a sweeping reform with the introduction of a Mediation Directive and Protocol, effective from 22 April 2025. Framed as a necessary intervention to an “intolerable” backlog, the Directive mandates compulsory mediation in all civil matters before they can be set down for trial. This is a significant shift in South Africa’s litigation landscape and is aimed at addressing the severe backlog in the court system, where trial dates are currently being allocated as far ahead as 2031.
Presently, the delay in obtaining trial dates has rendered the right of access to courts under section 34 of the Constitution practically meaningless. In an attempt to overcome this, the Directive directly confronts this crisis, by aiming to divert resolvable matters outside of the trial system, prioritise judicial time for genuinely contested cases, and promote a less adversarial and more accessible justice system. The Judge President described the status quo as “self-evidently unacceptable,” particularly in Road Accident Fund (RAF) and personal injury claims where claimants rely on settlements for their livelihoods.
Under the new Protocol, all civil litigants must engage in court-annexed mediation before a matter can be set down for trial. A formal Mediator’s Report confirming either resolution or failure to resolve the dispute must accompany any request for a trial date. Without this report, a matter will not proceed. This is not a recommendation, but a procedural requirement, backed by enforcement mechanisms, including the striking off of matters that do not comply.
The Directive will be implemented in phases. All trial dates set down for 2025, excluding matters involving the Road Accident Fund (RAF), will remain unaffected. Matters with trial dates scheduled for 2026 will provisionally remain on the roll, subject to the registrar receiving a mediator’s report at least 30 court days before the scheduled trial. Failure to submit the report within this timeframe will result in the matter being removed from the roll. All trial dates for matters set down from 1 January 2027 onwards are hereby withdrawn. For RAF matters, trial dates allocated for the second term of 2025 will remain in place. Thereafter, such dates will be provisionally remain on the roll, subject to the submission of a mediator’s report no later than 7 days prior to the trial. Failure to comply will result in the matter being struck from the roll.
The process of mediation must be initiated in terms of Rule 41A of the Uniform Rules of Court. An Initial or Amplified Notice is served, setting out the party’s willingness to mediate, preferred mediator(s), and administrative platform to be used. If the parties fail to agree on a mediator, the Protocol outlines a process of reciprocal proposals involving recognised mediation organisations (RMOs), ultimately leading to the appointment of an “Umpire”, a judge nominated by the Judge President, to select the mediator. Mediators must be qualified professionals, having complied with various accreditation tasks. They must be registered with an RMO and adhere to its code of conduct, disciplinary processes, and continuing professional development obligations.
Once appointed, parties must sign a Mediation Agreement in compliance with Rule 41A(4)(a) and (b). For the duration of mediation (which may not exceed thirty days, unless extended by consent or court order) all procedural time limits under the Rules are suspended. The Mediator’s Report must be submitted within ten court days of conclusion and is required to enrol a matter for trial or settlement. Without it, a matter will not proceed. Mediation outcomes and the conduct of parties are summarised in this report and may influence costs orders if a party is found to have acted in bad faith.
The goal is to divert matters from overburdened court rolls and resolve them earlier and more efficiently. The Directive notes that 85% of civil matters are currently settled on the morning of trial, often after years of delay and cost. By shifting resolution to an earlier stage, the judiciary hopes to preserve resources for genuinely contested matters while improving access to justice.
The Gauteng Legal Practice Council has questioned the constitutionality of the Directive, particularly the risk it poses to the right of access to courts. However, the judiciary appears determined to move forward, citing international examples of success with compulsory mediation and the urgent need to reform a system in crisis.
Practitioners must now adapt their litigation strategy. Mediation is no longer a side-step, but rather a core part of the civil process. Legal representatives must advise clients early, prepare thoroughly for mediation, and ensure compliance to avoid sanctions. The directive reflects a clear policy choice: disputes that can be resolved without judicial intervention should be, and the courts must be reserved for matters that genuinely require adjudication.
Written by Alexis van Eeghem
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