A Full bench of the Gauteng High Court Pretoria has reserved judgment on an application brought by the Personal Injury Plaintiff Lawyers Association (Pipla) who is challenging a directive for mandatory mediation in civil matters before it can possibly go on trial.
This directive was earlier issued by then Gauteng Judge President Dunstan Mlambo, who has meanwhile been appointed as the country’s deputy chief justice. According to Pipla, the directive is unworkable and unconstitutional.
Since the start of this court term, there have been more than 4,800 applications brought in the Pretoria High Court alone to compel defendants to mediate, which amounts to about 600 per week.
Pipla is asking for an order that the directive, issued in April last year, introducing mandatory mediation in the Gauteng Division, be declared constitutionally invalid. Pipla told the court that Judge Mlambo acted outside his powers when he issued the directive.
It also pointed out that while the Road Accident Fund (RAF) in cases involving it agreed to pay up to R15,000 for mediation, litigants are left to foot the rest of the bill themselves. The directive and protocol decrees that mediation will be compulsory in Gauteng in all civil cases.
All civil trials issued against the RAF since January this year were withdrawn and can only be issued with a new trial date if the request is accompanied by a mediator’s report. In arguing that the directive and protocol is unconstitutional, Pipla argued that everyone is equal before the law and entitled to have their day in court. According to the organisation, the directive and protocol do not provide for equal protection and benefit of the law.
Pipla, a non-profit organisation, said the motivation behind the compulsory mediation is understandable, as the judiciary cannot cope with the caseload. But it is said the answer cannot be to reduce the caseload by limiting litigants’ rights to access the courts. It said the answer is more judges in Gauteng, as well as establishing a court to hear personal injury matters. It concluded that compulsory mediation is definitely not the answer.
The RAF meanwhile submitted that there is no merit to the application. It slammed Pipla’s argument that the Judge President of the Gauteng Division of the High Court does not have the power to implement directives in relation to compulsory mediation.
It argued that the Judge President indeed has the power and authority to regulate the court function. “The directive and protocol have not been shown to fall short of constitutional muster. Instead, the converse is true. The First Respondent (Judge Mlambo) issued it within the powers and authority conferred upon his office in terms of the Constitution,” it said.
According to the RAF, the directive and protocol seek to encourage parties to mediate and comply, not as a check box exercise, but legitimately. “Mediation has the inherent character of a continuous negotiation process. It is this trait that makes it a viable option to encourage and assist in increasing the number of out-of-court settlements. Where parties are unable to reach consensus at this stage, the assistance of a knowledgeable and competent mediator serves to bring down barriers to settlement that the parties may struggle to conquer,” the RAF said.
The fund added that the adversarial route of litigation has seen the RAF pay out large sums of money to the benefit of legal practitioners and said mediation in the context of RAF litigation is a welcome regime change. Counsel for the justice minister and Judge Mlambo meanwhile objected to Mlambo being cited as a respondent. It stated that Pipla did not obtain consent from the Chief Justice in this regard, a required in law.
Zelda Venter
iol.co.za
