New High Court Directive Explained
The principles that underpin effective dispute resolution-strategy, structure, and collaboration – are not unique to the legal profession. They are equally evident in the world of elite sport. The Springboks' recent performances have highlighted the value of tactical discipline and collective effort, qualities now mirrored in the Gauteng High Court's shift toward mandatory mediation as a means of alleviating systemic delays and creating the potential for early resolution.
A New Kick-Off: The Mediation Directive
Much like the Springboks adjusting their tactics mid-match, the judiciary has recognised the need for a more strategic, collaborative approach to dispute resolution – one that prioritises early engagements over drawn-out litigation.
Effective from 22 April 2025, the Gauteng Division of the High Court has implemented a directive (April 2025) requiring that all civil trial matters undergo mediation before a trial date will be allocated. This reform is a direct response to the severe backlog of cases, with trial dates previously being set as far ahead as (DIRECTIVE ON MEDIATION IN THE GAUTENG DIVISION – 22042025.pdf).
Structured Conflict: Mediation as the Legal Scrum
The directive responds to a growing pattern in which trial dates are sought for matters that present no genuine issues for adjudication—cases that ultimately do not require a judge's intervention. In fact, up to 85% of matters on the Gauteng Division's civil trial roll are settled on the morning of trial (DIRECTIVE ON MEDIATION IN THE GAUTENG DIVISION – 22042025.pdf), underscoring the inefficiency of defaulting to litigation. Mediation, much like a rugby scrum, offers a structured and controlled way to restart the process—encouraging parties to engage in facilitated dialogue rather than adversarial confrontation. This shift promotes early, effective resolution and helps restore order to an overburdened system.
Strategic Play: Aligning with Constitutional Values
Wait a minute, is my right of access to courts as enshrined in Section 34 of the Constitution not infringed by the new Mediation Directive?
If we can ask for a TMO on this play, we will see that the right to access the courts remains intact. Mediation does not compel agreement—it simply urges parties to engage meaningfully before turning to litigation If no settlement is reached, voluntarily and by agreement, the path to judicial intervention remains open.
However, it should also be noted that the right of access to the Courts, as enshrined in section 34 of the Constitution, is not absolute and can be limited in certain circumstances. While it guarantees everyone the opportunity to have their disputes resolved by an independent and impartial tribunal, this right is not limitless and can be restricted when a litigant's conduct misuses the judicial process.
Stay off the Sidelines: Mediation Is Now the First Move
Don't want to be sitting on the sidelines with a red card? Here's how to avoid it.
The Gauteng High Court's mediation directive is now in full effect, and compliance is not optional. Before a trial date will even be considered, parties must engage in the prescribed mediation process. Ignoring this step may result in the matter being struck from the roll without a costs order.
Like any disciplined team, litigants must follow the rules of the game. Mediation is now part of the playbook, and those who embrace it early stay in the game and ahead of the opposition.
The Game Has Started—How Do We Play Now?
Transitional Period (Now – 31 Dec 2026):
- RAF Cases:
- Dates in term 2 of 2025 shall stand, however, dates for Terms 3 and 4 are provisional and will only proceed if a mediator's report (Within 10 court days of the conclusion of a mediation conducted, the mediator shall prepare, sign, and submit to the parties a report certifying the outcome of the mediation) is filed with the practice note at least 7 court days before trial (MEDIATION PROTOCOL FOR THE GAUTENG DIVISION – 22042025.pdf).
- All 2026 dates are withdrawn and must seek a new set-down date, accompanied by a mediator's report.
- Other Cases:
- 2025 dates remain intact.
- 2026 trial dates remain provisional and will be heard only if a mediator's report is presented 30 court days before trial.
From 1 January 2027 (all categories of litigation):
- All trial dates are withdrawn, and new enrolments will be scheduled within 18 months of a compliant request.
- No trial date will be issued without a mediation report.
- The registrar will allocate trial dates weekly, prioritising previously enrolled, compliant matters.
Concerned about losing your trial date? Here's the good news.
Judge President Mlambo has made it clear: if a matter loses its trial date due to the mediation directive but does not settle after a genuine attempt at mediation, it will be allocated a new, earlier date – not a later one. Think of it as a tactical substitution, not a penalty.
That's the call from the captain – but as with any new game plan, only time will tell how it plays out on the field.
Strategy Under Scrutiny
Like any new game plan, the mediation directive signals a bold shift but it's not without controversy. A Gauteng-based law firm, has subsequently challenged the directive's constitutionality, arguing it may infringe on the right to access courts and overstep judicial authority. They contend that the fundamental basis of the application concerns the head of court to issue a directive that effectively overrides legislation. Accordingly, they alleged that Judge President Mlambo (cited as the first Respondent) lacks the power under the Constitution and the Superior Court's Act to mandate the mediation process as set out in the Directive.
In pursuit of direct access to the Constitutional Court, the applicants held that the Practice Directive should supplement, not supersede, established legislation. Nevertheless, as reported by News24 on 28 May, the Constitutional Court recently issued its ruling, concluding that the applicants had failed to establish sufficient grounds for direct access to the court. (ConCourt chucks out challenge to mandatory mediation directive | News24).
Only time will tell whether this would be the end of the road for this matter.
Conclusion
Just as the Springboks meticulously refine their tactics ahead of a World Cup, the legal system must ensure that procedural innovation remains constitutionally sound. As the directive faces judicial scrutiny, the balance between efficiency and fundamental rights will be tested – reminding us that in both rugby and the law, success depends on precision, preparation, and respect for the rules.
It's now up to the Constitutional Court to decide if the judiciary's drive for efficiency has come at the expense of justice.
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