Mediation South Africa

South Africa: Law Society Appeals Dismissal of Challenge to Mandatory Mediation Directive

By ADR Journal Editorial Desk Published 2 sources Civil Procedure Judicial Immunity Mandatory Mediation Mediation South Africa South Africa

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TL;DR

  • Law Society of South Africa seeks to appeal dismissal of challenge to mediation directive.
  • Dismissal was on procedural grounds, not the merits.
  • Directive mandates mediation in civil cases in Gauteng.
  • Appeal raises constitutional questions about court administration and judicial immunity.

Overview

The Law Society of South Africa (LSSA) and the Personal Injury Plaintiff Lawyers Association (Pipla) have sought leave to appeal a High Court decision that dismissed their challenge to a mandatory mediation directive in civil cases, issued by former Gauteng judge president Dunstan Mlambo. The procedural dismissal was based on the failure to obtain prior consent from Chief Justice Mandisa Maya, raising debates about judicial immunity and the ability to challenge administrative actions by heads of court. The merits, which remain undetermined, include constitutional questions on judicial authority and access to court. The directive remains operative while the Supreme Court of Appeal considers the application.

What Happened

The Law Society of South Africa (LSSA) and the Personal Injury Plaintiff Lawyers Association (Pipla) challenged former Gauteng judge president Dunstan Mlambo's directive requiring mandatory mediation in all civil matters before trial.

Their case was dismissed by a full bench on procedural grounds, specifically the failure to seek and obtain the chief justice's consent before citing Mlambo, as required under section 47 of the Superior Courts Act.

The High Court found that the applicants' belated request to Chief Justice Mandisa Maya for such consent was insufficient and held this failure to be fatal, declining to address the merits of the constitutional and legal questions raised.

LSSA and Pipla are now seeking leave to appeal to the Supreme Court of Appeal, arguing that the ruling prevents important constitutional questions regarding the power of a judge president and judicial immunity from being determined.

The mandatory mediation directive remains in force pending further proceedings, with a date for the appeal hearing yet to be set.

Context

Dunstan Mlambo, as Gauteng judge president, issued a directive in 2025 requiring parties to mediate civil disputes before trial.

Section 47 of the Superior Courts Act is intended to protect judges from vexatious or frivolous litigation by requiring special permission to sue a judge.

The dismissal of the challenge has focused attention on the distinction between administrative and purely judicial acts, particularly regarding access to constitutional review.

Why It Matters

  • The case addresses the legal boundaries of mandatory mediation as a procedural requirement in civil cases in South Africa.
  • The outcome may impact access to court and the scope of judicial immunity for administrative decisions by heads of court.
  • The appeal could clarify how section 47 of the Superior Courts Act applies to constitutional and administrative challenges involving judges.

Sources

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