Mandatory Mediation in the Gauteng High Court: The PIPLA challenge

There is another challenge to the Mandatory Mediation Directive and Mediation Protocol by the Gauteng High Court.

The Personal Injury Plaintiff Lawyers Association (PIPLA) and several individual applicants have applied for urgent, direct access to the Constitutional Court to challenge the process. The application cites the Judge President of the Gauteng Division of the High Court, Minister of Justice and Constitutional Development, Chairperson of the Rules Board for Courts of Law, and the Road Accident Fund (RAF) as respondents.
Both current applications challenge the constitutionality and practicality of the directive and argue that the directive constitutes an overreach of judicial power. PIPLA similarly submits that the Directive and Protocol conflict with existing rules and infringe on the constitutional right of access to courts. The relief sought in both cases is substantially the same, with PIPLA also seeking an order that the Directive and Protocol be referred back to the Office of the Judge President for further consideration, public and industry consultation, reconsideration and amendment as directed by the court.

The PIPLA application highlights the effect of the Directive and Protocol with specific reference to Road Accident Fund matters. It provides various reasons why the Directive and Protocol will be unworkable, including that the volume of mediations will be unmanageable having regard to the number of RAF matters on the roll and the limited mediation resources available to cope with that caseload. The RAF does not have enough case managers with the required authority to settle claims at mediation. The application notes that while the RAF is prepared to pay R15 000 for mediation of each claim, this will likely be insufficient and plaintiffs will have to bear the excess expense. On that basis, mediation is effectively unaffordable to plaintiffs. It is alleged that the estimated weekly cost of mediation for the RAF matters will be about R4.5 million – an enormous, potentially unnecessary expense.

These applications are before the Constitutional Court and have not yet been accepted for hearing. In the interim, the Directive and Protocol remain in effect and compliance is required. We will keep you updated of developments.

Please also read:

Article 1 - Mandatory mediation in the Gauteng High Court

Article 2 - Mandatory Mediation in the Gauteng High Court: Some Developments