New Compulsory Mediation Rule Faces Concourt Challenge By Lawyers' Association

Advocate Justin Erasmus CEO of of the Personal Injury Plaintiff Lawyers Association

In a statement released earlier this week, advocate Justin Erasmus, chairperson of Pipla, said that while the directive may have been introduced to ease the mounting pressure on Gauteng’s civil trial roll, it does so at a cost too high for justice to bear.

Right of access

"This directive places an intolerable burden on litigants - many of whom are road accident victims - by making their right to a trial dependent on taking part in a mediation process that is expensive and often hard to access," Erasmus explained. "In doing so, this infringes on their fundamental constitutional rights, including the right of access to courts as outlined in Section 34 of the Constitution."

Pipla argues the directive goes against the Constitution, goes beyond the powers allowed by law, and simply won't work in practice. In its court papers, the association says that the directive directly contradicts existing court rules, particularly Rule 41A of the Uniform Rules, which clearly define mediation as a voluntary process.

“There is no legislative basis for mandatory mediation of this nature,” said Erasmus. “If mediation is to play a role in our system, it must be properly legislated, publicly debated and fairly implemented – not introduced by a Judicial Directive in a manner that jeopardises the right of the very people the justice system exists to protect.”

Disproportionate disadvantages

Pipla is particularly concerned that the directive disproportionately disadvantages indigent plaintiffs. "The RAF has capped its mediation contribution at R15,000,” said Erasmus, "yet typical mediation costs in complex personal injury cases can easily exceed R30,000. Plaintiffs, already financially vulnerable, are now forced to carry these costs upfront or risk losing their trial date."

The RAF’s existing resource constraints further exacerbate the issue. With an estimated 300 new RAF matters scheduled per week on Gauteng’s trial roll, Erasmus said it is wholly unrealistic to expect the RAF to immediately participate meaningfully in this volume of mediations, particularly with the protocol requiring full-settlement authority from claims managers.

“The infrastructure simply does not exist. There are too few accredited mediators with relevant experience, and the RAF itself is not institutionally prepared for this scale of mediation.”

Lacking flexibility

Moreover, the directive offers no flexibility or discretion for plaintiffs who have acted in good faith.

“Even if the plaintiff attempts mediation and the RAF fails to attend or engage constructively, the case risks being struck from the roll,” Erasmus warned. “This rigid, one-size-fits-all approach punishes those who have complied with the rules and waited years, sometimes since 2019, for their trial dates.”

Pipla has called for the directive to be declared unconstitutional and set aside.

“We acknowledge the need to address the judicial backlog,” said Erasmus, “but this cannot come at the expense of justice. More sustainable solutions exist, such as placing more matters on the roll, as was the case in the past, the appointment of additional judges, expansion of block settlements or the creation of a specialised personal injury court."

"The Constitutional Court must now determine whether access to justice can be made conditional upon a process that is, by design, exclusionary, inflexible, and unsupported by law," Erasmus concluded.