NPO challenges constitutionality of directive making mediation compulsory

JOHANNESBURG - A non-profit organisation (NPO) challenging the constitutionality of a directive making mediation compulsory says there is no capacity for the exercise.

Gauteng Judge President, Dunstan Mlambo, introduced the practice in April in an attempt to reduce the backlog in cases in the division.

The Personal Injury Plaintiff Lawyers Association (PIPLA) says there are between 250 to 300 road accident fund matters on the court roll per week in the Gauteng division.

It argues that there aren’t enough mediators to handle such a caseload and wants the Constitutional Court to declare the directive unconstitutional.

The association is sceptical that mediators would have the resources to cope with a growing caseload that the high court, with settled systems and judicial officers, has continuously struggled to keep up with.

The protocol provides that as a minimum requirement for approval as a mediator, one must have had at least five previous matters in which they have acted as a lead mediator.

This, PIPLA argues, further limits the pool of existing mediators, while the requirement that a claims manager from the road accident fund also be present during the process is a factor that further acts against the directive, as there aren’t enough officers to participate in such a process.

The organisation asks the Constitutional Court to declare the directive invalid to the extent of its inconsistency with the Constitution and, if necessary, review the directive and set it aside under the Promotion of Administrative Justice Act.

VOLUNTARY MEDIATION

The Gauteng High Court handles about 50% of the cases litigated in the country, while the number of judges in the division has not increased since 2008.

Section 173 of the Constitution stipulates that the Constitutional Court, the Supreme Court of Appeal and the high courts each have the power to protect and regulate their processes and to develop the common law, taking into account the interests of justice.

But PIPLA argues that it is impermissible to use this provision to compel parties to participate in compulsory mediation.

It adds that courts can only encourage and facilitate mediation, but not direct parties to participate in what should be a voluntary process.

The organisation says compelling parties to engage in such an exercise would achieve nothing but to add to the costs borne by the parties and damage the perceived effectiveness of the alternative dispute resolution process.

In its request for a declaration of constitutional invalidity, the organisation says the directive constitutes an unacceptable and unjustifiable limitation of litigants’ rights to access the courts.