Farriers are the folk who shoe horses. The demand for their services dwindled sharply when the horses they shod back in the nineteenth century were replaced, over time, by the use of the internal combustion engine in cars, trucks and other forms of transport. Some major league litigators in Gauteng (and elsewhere) are behaving as though their profession is faced with an extinction event more severe than that suffered by the farriers of old when horses became as redundant as some lawyers now fear will be their lot should compulsory mediation be allowed in law.

The proposal by Gauteng Judge President Dunstan Mlambo that civil cases in his division be subjected to compulsory mediation prior to their enrolment for hearing in his court has met with the criticism that it would be unconstitutional to do so. The substance of the mediation suggestion and the reaction of Judges Matter and others to it is well reported by Ground Up here: “Gauteng High Court proposes mandatory mediation for civil cases“.

The constitutionality of the proposal is the focus of this note.

As with most matters constitutional, the starting point is the Constitution itself. Access to court is regarded as a human right and is enshrined as such in Section 34 of the Bill of Rights which reads:

“ Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

It is probably correct to regard a mediation as a “forum”, but whether it is an appropriate forum or not will have the farriers at the Bar stoutly contending that mediation is not an appropriate forum for any dispute which, in their interpretation of the section, should be the subject of a High Court Trial.

Those who favour the Judge President’s proposal for compulsory mediation will point to Section 36 of the Constitution, the limitation of rights clause which reads:

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Proponents of compulsory mediation argue that a civil trial in a High Court is not the only subject matter of the “Access to courts” clause in the Bill of Rights. It expressly includes, where appropriate, a tribunal or forum and a means of deciding a dispute.

Where the High Court is so snowed under that it is currently offering court dates for civil trials in 2031, it is surely appropriate that other ways of disposing of the disputes for which there are insufficient judges to hear matters any time soon should be allowed in our constitutional dispensation.

There is certainly no dignity, which happens to be a guaranteed human right, in waiting for years for a court date, especially not if a swift alternative is available in the form of a compulsory mediation. Human dignity is enshrined in Section 10 of the Bill of Rights. Respecting and protecting dignity are duties the state must perform in terms of Section 7(2) of the Bill of Rights.

Many of the cases currently clogging the rolls of the courts of Gauteng are claims against the Road Accident Fund brought by victims of road accidents or their dependents. Making them wait, seemingly endlessly, for adjudication of any possible payout simply compounds the indignity of their lot. The system should provide for swift resolution of their claims, especially those of dependents who have lost the support of their sole breadwinner in a road accident.

While it is possible to apply in appropriate circumstances for acceleration of the date for hearing of a matter that has an element of urgency about it, claims for damages are not usually regarded as eligible for acceleration in the absence of special circumstances. If all ripe for trial claims against the Road Accident Funds were spread evenly and equitably across all divisions of the High Court for virtual hearing by, inter alia, underworked judges in quiet backwaters there would be less stress on the Gauteng High Courts in Johannesburg and Pretoria.

It is also arguable that the introduction of compulsory mediation would not constitute a limitation of the right to access to a forum that is suitable, in the form of a mediation. If however the farriers succeed in persuading the Constitutional Court that compulsory mediation is a limitation, the focus will turn to the nature and extent of the limitation and to such less restrictive means as may be available to achieve the purpose. The attitude of that court toward mediation is discussed by the stalwarts of Conflict Dynamics, John Brand and Chris Todd here:

In an ideal world, sufficient judges are appointed to carry the workload of the courts. In this day and age, in which virtual courts routinely sit, it is possible to spread the time and talents of judges across the entire electronically connected country. Judges sitting in quite rural divisions can be required to sit in busy urban divisions , like Gauteng, to help share the workload of the judges stationed there. Government should always appoint sufficient judges to enable them to dispose of the workload of the Bench diligently and without delay, as is required by the provisions of Section 237 of the Constitution. The use of squadrons of acting judges, either remunerated or as volunteers, whether from the ranks of “retired judges” (some say judges never retire) or from the ranks of suitably experienced legal practitioners both retired and still practicing.

Voluntary mediation has been allowed under the provisions of Rule 41A of the Uniform Rules of Court for some years. The rule mandates that parties in a legal action consider mediation before proceeding with litigation, requiring a notice of agreement or opposition to mediation to be served with the summons or notice of motion. 

Here’s a more detailed explanation gleaned from the work of Conflict Dynamics:

Purpose: Rule 41A aims to encourage parties to explore alternative dispute resolution methods, specifically mediation, before resorting to full-blown litigation. 

Requirement: The plaintiff or applicant must serve each party with a notice (Form 27) stating whether they agree or oppose the referral of the matter to mediation. 

Timing: This notice must be served along with the notice of motion or summons. 

Costs: Under the Rule, courts can make adverse costs awards against parties who unreasonably refuse to mediate, even though mediation is voluntary, and non-compliance with the rule can be raised during argument pertaining to costs. 

Peremptory Terms: Rule 41A is drafted in peremptory terms, meaning it must be complied with. 

Form 27: The Rules Board formulated Form 27 as the prescribed form for the notice of agreement or opposition to mediation. 

Legal Recourse: Rule 41(4) allows a party to apply for judgment based on a settlement agreement that has not been executed.

It is probably best to characterise mediation as a step in the litigation process, whether voluntary or not, that has the potential to end a dispute due to the “win-win” philosophy of a skilled mediator being brought to bear on the minds of the litigants and on the exigencies of their dispute. The truth is that most civil trials are settled before they reach court, or on the first day on which court is reached.

This being so, it is surely in the public interest that litigants be required to go through the process of mediation as a procedurally necessary preliminary step which may or may not obviate the need for a trial. Any litigant who behaves unreasonably or obstructively during the compulsory mediation can be ordered to pay punitive costs when the matter eventually reaches trial stage.

Justice delayed is justice denied may sound trite, but it is a truism.

The introduction of compulsory mediation ought to be regarded as a reasonable and justifiable limitation on the right to access to the High Court introduced for the worthy purpose of accelerating the rate at which the work of the High Court is done. If it is such a limitation (and arguably it is not) then it is one that is reasonable and justifiable and should be introduced by way of a law of general application as is required by Section 36(1). It is arguably beyond the power of the Judge President to create a dispensation for his own division when what the law requires is a law of general application across the country.

Mediation is quick, economical and desirable in the public interest. Given the dire circumstances in his division, not replicated elsewhere, it is understandable that the insurmountable backlog drove the Judge President to broach the subject of making mediation compulsory. Those who insist on their “day in court” are not deprived of it if the mediation fails, but, if it fails due to their intransigence consequences in the form of punitive costs could follow.

If compulsory mediation is legislated in SA, it would be salutary for parliament to insist that all mediators be appropriately qualified independent professionals who are accountable to an equally independent professional body. Making mediators quasi civil servants is not indicated. The work of the Law Reform Commission on this aspect is instructive.

Note:

A contrary view as to the efficacy and legality of compulsory mediation has been expressed by Dan Mafora in the Mail and Guardian newspaper https://mg.co.za/thought-leader/2025-03-27-mandatory-mediation-raises-concerns-about-the-rule-of-law/.