The Personal Injury Lawyers Association will turn to the Pretoria High Court to challenge the new mandatory mediation process before civil trials are heard.
Image: Jacques Naude / Independent Newspapers
The Personal Injury Lawyers Association (Pipla), which represents the interests of lawyers, as well as five claimants against the Road Accident Fund, have also lodged a legal challenge against the directive introducing mandatory mediation in the Gauteng Division of the High Court.
They will ask the court to declare the directive unconstitutional and invalid. The applicants want an order provisionally interdicting Gauteng Judge President Dunstan Mlambo from further implementing the directive until the Constitutional Court has spoken the last word on the subject.
Advocate Justin Erasmus, the chairperson of Pipla, said in an affidavit filed with the application that the practice notice is unworkable. In terms of the directive issued by Judge Mlambo from mid-April this year, no trial dates are allocated for civil trials (where evidence is led) without the issues first going to arbitration. Only if arbitration fails, and a certificate in this regard is issued, will the court accept these cases.
This measure was taken by the Judge President to alleviate the burden on the court rolls. He reasoned that most of these cases, which clogged the court roll, in any event, became settled on the day of the trial. It was pointed out by him that the Gauteng High Courts carry the burden of the most cases. It is understaffed, with judicial posts last filled in 2009. There are simply too many cases and too few judges to handle them.
Pipla and the claimants against the RAF, which are a party to this application, stated that they will forfeit their trial dates - many of which have been obtained years prior to the anticipated hearings - if they cannot successfully conduct the mediation process.
They also expressed their concerns that they, and many others, will not be able to afford to pay for the compulsory mediation. “The matter is of public importance. The poor and vulnerable (in Gauteng) who are unable to afford mediation will be severely prejudiced, and their right under the law to access the court will be violated,” Erasmus said.
He added that if they fail on mediation and have to turn to court, they will once again be subject to more legal fees. “Litigation, in most cases, will have the potential to become much more expensive than before,” Erasmus stated. According to Erasmus, the notion that the court can compel parties to mediate with the hope of settling a matter is foreign to our law. He said the fact that the Gauteng courts are under-resourced does not justify the deprivation of litigants turning to court.
A Durban woman who is left a paraplegic and financially destitute after an accident also launched a separate urgent application on the topic, which is due to be heard next week. She said her accident occurred six years ago, and she eventually obtained a court date issued in 2023 for her hearing. Her matter is scheduled to be heard in August this year, but her case is now first subject to arbitration in terms of the directive.
The woman also expressed reservations about whether she will be able to afford mediation, as she is currently making ends meet with a social grant.