KEY POINTS
- Pretoria law firm challenges mandatory mediation directive in Constitutional Court.
- The Pretoria law firm maintains that the litigation directive breaches South African constitution by denying access to the right to appear in court directly.
- A decision rests with the Constitutional Court regarding accepting the emergency request.
The Pretoria-based law firm filed an application at the Constitutional Court to fight a controversial High Court of Gauteng Division civil proceedings mandate requiring judicial mediation before court trials.
Since last week all civil plaintiffs in Johannesburg along with Pretoria high court jurisdictions must demonstrate their efforts in mediation before obtaining a judge to hear their case. The judicial authority issued the March directive through Gauteng Judge President Dunstan Mlambo to reduce excessive court caseloads.
Gert Nel Inc Attorneys under the direction of Gert Nel filed an urgent court application to prove that this directive violated litigant constitutional rights. The process of mandatory mediation creates a genuine prejudice for clients because now they cannot obtain trial dates until all mediation attempts become unsuccessful.
Nel noted in his affidavit that cases remained halted since there were no certain dates for upcoming trials to happen.
The challenge focused on the constitutional boundaries being exceeded
Under the Constitution and Superior Courts Act the court’s head does not possess powers to enforce mandatory mediation. The directive faces an official request for unconstitutional status at the Constitutional Court because it violates current laws and diminishes the legal rights of disputants.
According to Nel the strategy to reduce trial roll congestion should not degrade essential legal rights.
The Office of the Chief Justice (OCJ) maintained support for the directive by stating that judicial adjudication never occurred in more than 90% of trial roll cases. Judicial resources become more valuable when the mediation requirement protects their use for actual disputes.
The directive arises from plaintiffs’ representatives who insist on obtaining court dates for cases without real adjudicative matters according to the OCJ.
Constitutional Court to decide on mandatory mediation directive
The application needs a decision from the Constitutional Court about granting direct access and urgent hearing for the matter. The challenge before the Constitutional Court holds potential to define exactly how judges handle both administrative power boundaries and protections granted to petitioners in South African law.
The legal profession follows this case intensely because it may affect nationwide procedures in civil litigation.
