The delays currently being experienced in our courts are no secret to legal practitioners. Having a dispute crystalised in 2025 and then potentially having to wait several years for the case to be heard undermines the purpose of the justice system and impedes the aggrieved parties' right of access to courts under section 34 of the Constitution, which by implication requires the speedy resolution of disputes.
The question is: What can be done to fix the backlog? The Office of the Judge President of the Gauteng Division of the High Court ("Office of the JP") has attempted to address this in its recent draft directive ("the Draft Directive"). Unsurprisingly, the Draft Directive has drawn both praise and criticism, as any significant change would. However, it does seem that one way to salvage our overburdened court system is to fully embrace ADR.
The Draft Directive
It has been acknowledged by the Office of the JP that "the right of access to Courts as guaranteed in section 34 of the Constitution is not capable of being properly honoured by such lead time for dates of hearing." To mitigate this, the Office of the JP proposes making mediation a compulsory step before litigation.
The proposed Draft Directive only applies to civil litigation in Gauteng. It highlights that many of the cases enrolled for trial end up being resolved shortly before the trial was supposed to commence, which end up consuming limited judicial time that could have been allocated to complex disputes truly requiring court intervention.
The Draft Directive's specific provisions include the cancellation of trial dates scheduled beyond 1 January 2027 to facilitate mediation attempts. For RAF matters, dates allocated for terms 3 and 4 will remain provisionally on the Court Roll, provided that a mediator's report and civil trial practice note are submitted to the court within 7 court days before trial. Other civil cases with 2026 trial dates will similarly remain provisional, subject to submission of a mediator's report 30 court days before trial.
Uniform Rule 41A
This initiative builds upon existing mechanisms, such as Uniform Rule 41A, which already requires parties to consider mediation at the commencement of litigation.
Subsection 2(a) of rule 41A states that "in every new action or application proceeding, the plaintiff or applicant shall, together with the summons or combined summons or notice of motion, serve on each defendant or respondent a notice indicating whether such plaintiff or applicant agrees to or opposes referral of the dispute to mediation". The same sentiment is stated in subparagraph (b) except in relation to a defendant or respondent.
The Draft Directive proposed by the Office of the JP builds upon existing mechanisms, which already require parties to consider mediation at the commencement of litigation. The inconsistent engagement with these ADR options to date has led to the need for more structured measures to enforce the utilisation of ADR to reduce the existing backlog.
Alternative Dispute Resolution Mechanisms
Mediation is not the only solution to reduce the existing backlog, there is also negotiation and arbitration:
Negotiation involves a discussion between the two parties with no impartial third persons involved. This method of ADR is used to resolve disputes amicably in a way that both parties find acceptable. However, since parties are not always agreeable, many negotiations end up in mediation or arbitration. Despite this, negotiation remains the best form of ADR to preserve relationships between the parties in dispute where the parties still have to live with each other's existence, especially in long-term contracts.
Mediation involves the intervention of a third party in an attempt to get the parties to come to a settlement or compromise. The only real problem with mediation is that its outcome is not binding on the parties unless the outcomes are reduced to an agreed settlement.
Arbitration involves the intervention of a third party (the arbitrator) who makes a final and binding decision on the outcome of a dispute before him. Arbitrations are similar to court trials but with less formality. Arbitrations can become costly, but they are one of the faster ways to get a dispute finalised.
Erven 176 Wadeville (Pty) Ltd v JC Impellers (Pty) Ltd
The High Court recently handed down a judgment in Erven 176/177 Wadeville (Pty) Ltd v JC Impellers (Pty) Ltd. In this case, the court conveyed respect for the ADR process, entered into freely and voluntarily between parties, by preventing sidestepping of arbitration proceedings.
Background facts
Wadeville (the "Applicant") and JC Impellers (the "Respondent") ("the Parties") entered into a lease agreement, which led to several disputes. After the Applicant terminated the agreement, they sought an eviction order and appealed a spoliation order that was granted previously in favour of the Respondent. In the meantime, the Respondent had referred a dispute regarding the validity of the termination of the lease to arbitration.
The Applicant approached the court for an urgent interdict to postpone the arbitration until both the eviction and appeal proceedings were finalised.
Court's Ruling
The Applicant's case rested on the arbitrator's lack of jurisdiction and a fear of not being able to challenge the arbitral award if it predated the appeal judgement. The court held that the arbitration agreement between the parties gave the arbitrator the power to determine his own jurisdiction, as well as the power to postpone the arbitration.
The court emphasised that it is important to hold parties to their arbitration agreements, which they entered into freely and willingly. And even though courts do have the power to prevent a party from being subjected to arbitration, they cannot prevent such if it is only a matter of inconvenience. The arbitration would need to be meritless to be prevented.
Ultimately, it was found that the Applicant would not suffer prejudice if it submitted its concerns regarding jurisdiction and postponement to the arbitrator. Due to the lack of urgency, the matter was struck from the roll.
Conclusion
This ruling underpins the importance of following through with ADR mechanisms entered into freely in contracts. This case is relevant in light of the Draft Directive because it shows how courts hold ADR processes in high regard.
Even though the judgement relates specifically to arbitration clauses, the principle regarding the importance of ADR is still applicable more widely. The Draft Directive represents a significant development in case management strategy. By prioritizing ADR processes, the judiciary aims to reduce case backlogs, lower litigation costs, and preserve court resources for matters genuinely requiring judicial determination. This development is an opportunity to deliver more efficient and cost-effective outcomes for clients while still maintaining access to justice.
This reform initiative reflects an evolving understanding of dispute resolution in South Africa's legal system. Practitioners who adapt to these changes and develop expertise in ADR processes will be better positioned to serve their clients' interests effectively in this new environment. The Draft Directive ultimately seeks to strengthen, rather than diminish, the justice system by creating multiple pathways to resolution while preserving the courts' essential role.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
