While all civil trials in the Gauteng Division of the High Court have been subjected to the mandatory mediation route for the past four months, the Association for the Protection of Road Accident Victims (APRAV) said that the system is simply not working.

According to the organisation, the justice system in Gauteng is on the brink of collapse, and said the mediation directive is lying at the heart of this crisis.

“This is no longer just a matter for road accident victims. It now affects every South African whose right to fair, timely access to court is being quietly taken away,” said APRAV Deputy Chairperson, Ngoako Mohlaloga.

The directive, issued in April by the then Judge President of the Gauteng Division, Dunstan Mlambo, mandates that almost all civil matters — including Road Accident Fund (RAF) claims —undergo court-annexed mediation before proceeding to trial.

In theory, the aim was to clear the trial backlog. In practice, it has created a procedural labyrinth that is shutting people out of court completely, Mohlaloga said.

APRAV said it has reviewed reports from dozens of legal practitioners, all of whom have asked to remain anonymous. These practitioners describe new rules issued verbally by registrars with no formal publication, as well as unequal treatment, where one firm is allowed to book a matter, and another is turned away for the same request.

It said cases are being removed from the trial roll despite full procedural compliance. “Attorneys are afraid to speak publicly. That alone should raise alarms. In a democracy, our courts should be guardians of transparency — not places where silence is a survival strategy,” Mohlaloga said.

According to APRAV, cases are bounced between internal registrars, assigned to overburdened special interlocutory courts, or pushed onto the default judgment roll, which is now backlogged until 2032. 

In the RAF matters, where urgent relief is often needed for disabled or injured victims, the result is devastating, according to APRAV. It said its calculations show that a new RAF claim today could take eight to 12 years from the incident to payout — if it is paid at all.

It is also accusing the RAF of exploiting the “broken” system. “The RAF simply refuses to mediate – defeating the entire purpose of the directive. It only settles matters once trial dates are allocated,” Mohlaloga said.

Multiple urgent court applications have been launched to challenge the directive on constitutional grounds. All have been dismissed thus far, while another is pending.

APRAV, meanwhile, called on Parliament and other bodies, such as the Legal Practice Council, to urgently review the legality and operational consequences of the directive.

The Office of the Chief Justice earlier explained that the directive is necessary to alleviate the burden on judges who simply cannot cope with the case load.

While most of the civil trials on the roll are settled shortly before they are due to be heard by a judge, mandatory mediation beforehand ensures that these judges cannot attend to other applications.

It explained that the directive has been issued following a wide consultative process by the division with law bodies, practitioners, mediation organisations, mediators, and litigants in general.

zelda.venter@inl.co.za

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