Like much of our public sector, the justice system is offloading responsibilities to the private sector. Judge President of the Gauteng division Dunstan Mlambo has decided that, effective on the 14th of April, all civil trials are now mandated to pass to mediation.

This has been driven by an impossible caseload and declining capacity of those responsible for handling it. Trial delays have pushed dates out to 2031, making the constitutionally mandated “timely justice” something of a wishlist item.

But it is certainly true that much of our civil cases are wasting the court’s time. 85% of civil trials settle on trial day, and the Judge President has considered them to be clogging the roll. Mediation can resolve many cases, freeing judicial resources.

The 2022-2023 Judiciary Annual Report recorded a 47% backlog rate for criminal cases across South Africa’s high courts, Gauteng is ahead at a 29% backlog rate, while the Western Cape languishes at 58%. These new measures will likely see that gap widen, but the Western Cape has been introducing policies with counterproductive effects.

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Global trends

To support this new mandatory mediation policy, the Judge President points to “global trends” in the announcement. Western countries have been moving in this direction for years, and it is surprising that it has taken South Africa so long.

Since the 1990s, the Civil Procedure Rules of England and Wales increasingly requiring parties to attempt mediation before proceeding to trial. In 2023, the Ministry of Justice expanded mandatory mediation for claims under £10,000. Non-compliance can lead to cost penalties, even for victorious parties.

In states like New South Wales, the Australian Civil Procedure Act 2005 mandates that parties take "genuine steps" toward resolution (often mediation) before litigation. The Federal Court’s mediation program has seen over 60% of referred cases settle, easing trial schedules. Italy has made similar orders for some classes of civil case, but this has only trimmed the load by 20%.

States like California and Florida have mandatory mediation or settlement conferences for civil cases, and Federal courts often require ADR under local rules - mediation has shown to resolve up to 80% of referred disputes (depending on jurisdiction). The 2008 EU Mediation Directive also encourages member states to adopt mediation.

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Implementation

As of the Judge President’s decree, all trial dates  after the 1st of January 2027 are cancelled. No trial date will be issued without a mediator’s report, and the Registrar will prioritise compliant re-enrollments.

For cases involving the beleaguered Road Accident Fund, a transitional period from April until the 31st of December 2026 will mean no dates from Term 2 of this year will be changed, but from Terms 3 and 4, any hearing will require a mediator’s report 7 days prior, or else risk being struck off the roll. All 2026 dates are cancelled, and new dates from then will need a mediator’s report.

For non-RAF cases, dates remain unchanged for this year, but a hearing from 2026 onward will require a mediator’s report with 30 days priority. No trial date will be granted farther than 18 months from the date of request.

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Western Cape High Court

The Western Cape is behind the curve on this. While delays and backlog issues are well-recognised, fixes are marginal and piecemeal, and lack the heft of the recent changes in Gauteng.

Since 2014, South Africa has piloted court-annexed mediation under Magistrates’ Courts Rules (Rule 73), extended to some High Courts on a voluntary basis. In the Western Cape, this applies primarily to the Magistrate’s Courts, where parties can opt for free mediation services.

Mediation in the High Court is typically promoted at the discretion of judges, under Rule 37 of the nationwide Uniform Rules of Court. Judges do tend to encourage mediation, but there is no blanket policy.

The Office of the Chief Justice is rolling out Court Online to introduce electronic filing, and digital case management and evidence handling in the High Courts.Implementation is being phased in as of December 2024, until all cases are digitized. Phase 1 includes new cases, urgent applications, unopposed motions (e.g., RAF and divorce cases), and default judgments. Phase 2 covers opposed motions, civil trials, and appeals, while Phase 3 includes criminal matters.

But with the system often offline, whether due to loadshedding or the general incompetence of government IT departments (lots of untrained employment equity hires), it may prove to be less of a relief than promised.

The Master’s Office (which deals with most of the routine paperwork) faces a severe backlog, delaying routine tasks like trust trustee changes (over two years) and estate processing, sometimes leaving the sick unable to access healthcare funds due to stalled property transfers. The office is behind on 6,000 trusts, exacerbated by missing documents, staff shortages, with some officials absent for weeks at a time.

Bribery (R700–R5,000) is commonly used to expedite services. The Department of Justice acknowledges delays, citing a “Turnaround Strategy”, but without substantive changes in how the WCHC does business, little will change.

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Counterproductive policies

The "one trial per accused" policy, introduced via a practice directive from Acting Western Cape Judge President Patricia Goliath in 2023, stipulates that an accused individual may only face one trial at a time in the Western Cape High Court, unless prior authorization is granted by the Judge President:

“When an accused is on trial, or is awaiting trial, in the high court (in this division or any other), save with the prior authorisation of the Judge President, no other matter in which he or she is to be tried in this division may be transferred to this Court until the matter in which the accused is on trial or is awaiting trial… has been completed.”

This directive aims to manage court resources, but has been generally seen as an irrational measure, which creates even further delays. This directive delays justice by forcing cases against one individual to wait until others against that person conclude, and especially in a division already grappling with heavy workloads and major gang-related trials, this comes at the cost of dragging out high profile legal issues over decades.

This is particularly salient for organised crime cases like those of Nafiz Modack, an alleged organized crime figure. Modack faces multiple trials in the Western Cape High Court, including one for the assassination of policeman Charl Kinnear and another for a R46-million tax fraud case.

As these cases stretch out, the courts may be dealing with Modack well into the 2030s. In 2023, Judge Nathan Erasmus emphasized the need for prosecutors to prioritize cases, warning that failure to agree could result in court-ordered delays, with one case potentially being removed from the roll temporarily.

The impunity of the gangs was cultivated under Bheki Cele and Jacob Zuma’s deal with the Cape gangs in 2011, which caused a reversal of the rapidly declining homicide rate in the province, and has led to ANC-tied figures like Modack extending the remit of their operations beyond the traditional ganglands, and businesses across the Mother City, as well as City officials dealing with the construction sector, are suffering from extortion and occasionally assassinations.

Until the WCHC is willing to push bigger reforms like Gauteng, they will be sweeping leaves on a very long windy day.

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