Mandatory Mediation in the Gauteng High Court: Some Developments

In our note of 28 April 2025, we cautioned that the Mandatory Mediation Directive may be subject to challenge by the Gauteng Legal Practice Council or others.  

That has now come to pass. 

A Pretoria firm of personal injury lawyers has launched an urgent application seeking direct access to and relief from the Constitutional Court.  Others may join the application.  

The attorneys seek an order that the Directive and accompanying Protocol be declared constitutionally invalid and set aside, alternatively, reviewed and set aside.  

The fundamental basis of the application is the uncertainty regarding the power of the Judge President of the High Court division to issue a practice directive which purports to overrule, amend or contradict duly promulgated legislation, in the form of the high court rule, which encourages mediation on a voluntary, opt-in basis.  

They allege that for any litigants, particularly personal injury claimants and victims of medical negligence, mandatory mediation introduces additional cost, delay and procedural burden.  They argue that where a party is unable to secure a trial date without first enduring and funding a mediation process, regardless of the other party’s stance, the effective result is a narrowing of the constitutional right of access to courts.  If mandatory mediation is to be introduced as a peremptory procedural requirement that must be done through duly promulgated legislation or an authorised amendment to the rules of court and not by way of a practice directive.  

The application raises interesting and important issues of the powers and procedures of the heads of court division to issue directives, the possible unjustifiable limitation of the constitutional right of access to court under Section 34 of the Constitution, separation of powers, possible exposure of the parties or their attorneys to sanctions including costs and professional sanctions for breach of the directive, the failure to provide for the question of misconduct by mediators, and consequences for litigants’ rights should either or both parties wish to challenge the veracity of a mediator’s report or hold a mediator personally liable for misconduct that has resulted in prejudice and damages, and the abdication by the State of its duty to provide a forum for dispute resolution unless litigants pay out of their own pocket for private mediation, effectively imposing a “toll” to access the courts. 

For the present, and unless and until the operation of the Directive and Protocol is interdicted, litigants in the Gauteng High Courts will need to act in accordance with the Directive and Protocol.