Authored By: Aviwe Masophi
University of Fort Hare
Introduction
The South African judiciary is currently facing an unprecedented operational crisis, especially in the Gauteng Division of the High Court. Early in 2025, lawyers looking for trial dates in Johannesburg were confronted with the shocking fact that their cases might not be heard until 2031, which is a lead time of over six years. A stagnant judicial system that is unable to keep up with the enormous surge of litigation is the cause of this tremendous backlog. Nearly half of all civil litigation in South Africa is handled by the Gauteng Division, which serves as the country’s economic center. The number of judges assigned to the court stayed at thirty-four, despite a 300% increase in workload in Johannesburg between 2009 and 2024. The Judge President imposed a mandatory mediation directive in April 2025 in an attempt to “unclog” the rolls, which provoked strong resentment from the legal community. This essay contends that the forced mediation mandate may violate constitutional rights and unjustly burden destitute litigants, even while the backlog poses a serious threat to the rule of law. This article will look at the legal challenges to the mediation mandate, the systemic reasons behind the backlog, and the need for structural rather than just procedural reform.
Main Body
The Anatomy of a Crisis: Stagnation and Systemic Strain
An ongoing scarcity of judicial officers is the main cause of the current problem. Despite tremendous population growth and growing economic complexity, South Africa has only had about 250 judges since 2009. This is the lowest number of judges the country has had in sixteen years. This stagnation has primarily affected the Gauteng Division. Thirty-four judges in Johannesburg decided 7,253 civil cases in 2009; by 2024, the same number of judges were anticipated to decide 24,021 cases.
This burden is reflected in the current caseflow turnaround times. As of November 2025, lead times for general civil trial rolls for “Y” cases involving the Road Accident Fund (RAF), PRASA, and the MEC were up to January 2027. An eight-term notice is required for specialized rolls, such as the long-duration trials, with dates as far back as November 2026. Systemic challenges, such as unavailable courtrooms, malfunctioning recording equipment, and the ongoing effects of load shedding, further impede operational efficiency.
The court has mostly relied on “emergency measures,” such as hiring pro bono acting judges and practicing attorneys who volunteer their time to hear cases, to reduce these delays. Nevertheless, the court is unable to assign enough staff to cut lead times to a manageable level, even with eight to ten such judges every week. According to Deputy Judge President Ronald Sutherland, at least twenty judges would need to be assigned exclusively to civil proceedings each week in order to reduce the lead time to less than twelve months. As a “broken system” that jeopardizes the judiciary’s long-term independence and caliber, the existing reliance on unpaid, temporary acting appointments has drawn criticism.
The Mandatory Mediation Gambit and Constitutional Concerns
The Gauteng Division issued an order on April 22, 2025, requiring mediation before a civil trial date can be set, in response to the “sinking Titanic” of the civil register. Supporters contend that this eliminates cases that can be resolved quickly, saving money and time in court. Meanwhile, the legal community, represented by the Law Society of South Africa (LSSA) and the Legal Practice Council (LPC), has voiced serious concerns.
The possible violation of Section 34 of the Constitution, which protects the right to access courts, is the most urgent worry. Making court access contingent on mediation, according to critics, constitutes an unlawful barrier, especially for vulnerable litigants. The process may be a “futile exercise” for many, according to data from the first few months of implementation; in one case, only 35 of the 1,088 notices issued to the RAF inviting mediation were answered, and only three mediations took place.
The order is also criticized for disproportionately affecting claimants who are impoverished. The guideline does not provide a clear funding method for individuals who cannot afford mediator fees; thus, mediation is not free. This requirement “perpetuates inequality” in the legal system by adding a layer of expense and delay that wealthy litigants can readily absorb, for personal injury claimants, who are frequently from historically underprivileged families.
Judicial Overreach and the Need for Structural Reform
The directive is challenged on the grounds of legality and the separation of powers, in addition to its practical implications. Critics contend that by unilaterally changing the Uniform Rules of Court, the Judge President has exceeded his jurisdiction. Although Rule 41A permits voluntary mediation, the Gauteng directive makes it mandatory, thus establishing new substantive law, a prerogative that belongs to the legislature.
The decision, according to the Gauteng Legal Practice Council, jeopardizes the Law Reform Commission’s ongoing efforts to create suitable mediation laws. The Moseneke Committee Report of 2025 suggested a more straightforward solution, a minimum 20% increase in the number of permanent judge positions statewide, with Gauteng designated as a major priority, instead of “shifting the deck chairs” using procedural demands.
III. Conclusion
The extreme backlog in the High Court’s Gauteng Division poses a serious threat to the constitutional protection of access to justice rather than merely being an administrative obstacle. Although the Judge President’s attempt to implement forced mediation is a well-meaning attempt to control a “sinking” system, the directive has generated a lot of controversy. It puts the weakest members of society who depend on state-funded dispute resolution at an excessive financial burden and runs the risk of violating those seeking Section 34 rights.
Evidence demonstrates that a persistent lack of resources cannot be made up for by procedural “innovations” like mandatory mediation. The South African government needs to go beyond short-term fixes and “pro bono” stop-gaps in order to properly address the situation. The Moseneke Committee’s proposals, which include a significant expansion of the permanent judicial establishment and the deployment of sufficient staff and facilities, must be implemented immediately in order to provide a long-term solution. Justice for thousands of South Africans will continue to be postponed in the absence of such structural investment, as the judiciary is unable to satisfy the increasing demands of a complex democracy.
Reference(S):
Primary Sources
Constitution of the Republic of South Africa,1996
Superior Courts Act 10 of 2013
Uniform Rules of Court (specifically Rule 41A)
Harksen v Lane NO and Others 1998 (1) SA 300 (CC)
Mudawo and Others v Minister of Transport and Another (GP) (unreported case no 011795/2022, 26-3-2024)
Secondary Sources:
Benjamin M, ‘Ramaphosa’s specialised courts plan misses the real crisis in SA’s judiciary’ Daily Maverick (13 February 2026)
de Broglio M and Erasmus J, ‘The LSSA intervenes in Gauteng mandatory mediation case’ De Rebus (1 February 2026)
Gauteng Division Johannesburg, ‘Caseflow Turnaround Times as at 28 November 2025’ Legal Practice Council Gauteng Provincial Council, ‘Submissions on Draft Directive Implementing Mandatory Mediation in Gauteng High Court’ (8 April 2025)
Mudzuli K, ‘Judiciary’s efficiency improves amid persistent criminal backlogs and growing pressure’ Conviction (25 November 2025)
Office of the Chief Justice, ‘Annual Judiciary Report 2024/2025’
Tilley A, ‘Shortage of judges hampering delivery of justice in Gauteng’s high courts’ Daily Maverick (5 September 2024)
