WHILE the Constitutional Court has declined leave to a law firm to directly approach the apex court in an urgent bid to overturn a directive introducing mandatory mediation in the Gauteng Division of the High Court, a vehicle accident victim who is also objecting to the directives will take her plight to court.
The Durban-based woman, who is left a paraplegic following the accident, will turn to the Gauteng High Court, Pretoria later in June to ultimately have the directives issued by the head of the court overturned.
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.
This follows a directive issued by Judge President Dunstan Mlambo earlier this year that the Johannesburg and Pretoria high courts no longer allocate trial dates for civil cases (cases where evidence is being led, such as damages claims).
Litigants, who in these cases want a judge to determine their issues, must first prove that they have tried to resolve their issues via mediation. A trial date will be allocated only if mediation does not resolve the issues, and they can prove via a certificate that they did try it.
The Office of the Chief Justice earlier explained that there are no alternatives as the Gauteng Divisions simply cannot cope with the heavy workload. Judge Mlambo also commented in his directive that the bulk of these cases are, in any event, settled on the day of the trial. Thus, the mediation route is the practical solution so that judges can be freed to adjudicate over other matters.
The woman will meanwhile bring her application in two parts – the first is that she and others may retain the court dates they have secured before the new directive came into force in April. The second part in which she is contesting the legality of the directive, will be heard at a later stage.
The accident victim in this new legal challenge explained that it is expected of her (and others) to first pay the mediation fees before a mediator can adjudicate her case. She explained that before the accident she was a hairdresser. As she is now wheelchair-bound, her only income is a social grant. She is also HIV-positive and struggles with health issues.
She said in an affidavit that this application is to ensure that she has her day in court. The applicant stated that the directive differentiates between plaintiff litigants and the RAF regarding the amount payable for mediation and when it’s payable.
The RAF, she claims, is only liable for R15,000 per mediation, which only becomes payable 30 days after the receipt of the mediation report. A plaintiff, on the other hand, must pay the balance of the mediation fee upfront.
“If a plaintiff litigant does not pay, no mediation can be conducted and no trial date can be obtained,” she stated. According to the plaintiff, she cannot pay for mediation and this will result in her being denied justice. She also questioned the constitutional validity of the directive.
Gert Nel Inc Attorneys, through its director Gert Nel, in his now failed bid to the ConCourt, questioned whether this move for mandatory mediation is constitutionally sound. In an affidavit accompanying his urgent application, Nel said there are constitutional limits on judicial power.
