Claims the RAF does not have the capacity to mediate in volume.
The Road Accident Fund (RAF) lacks the capacity to mediate cases at scale, with only three out of 1 000 mediation notices served on the fund in the past four months having been mediated, but none of them have been settled.
Personal Injury Plaintiff Lawyers Association (Pipla) chairperson Advocate Justin Erasmus made this claim this week following Pipla lodging an urgent supplementary affidavit in the Gauteng High Court on behalf of its members last week.
Pipla represents about 400 personal injury lawyers in South Africa.
Erasmus said two large legal firms have since April this year served more than 1 000 Rule 41A notices on the RAF.
“Only 35 have been responded to, and just three matters have gone to mediation. To date, nothing has been settled. The RAF simply does not have the capacity to mediate in volume,” he said.
RAF spokesperson McIntosh Polela said on Wednesday the RAF is on record welcoming the mediation directive announced by the Judge President Dunstan Mlambo.
“Pipla comes up with nonsensical allegations against the RAF every time they want to appear in the media,” said Polela.
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Pipla’s urgent legal challenge
Erasmus said that historically Gauteng’s trial rolls carry about 300 matters a week but mediation, by its very nature, is a protracted process taking at least a full day.
“To keep pace and avoid any backlogs or bottlenecks, 300 mediations would need to be completed weekly, requiring at least 60 state attorneys dedicated solely to the task,” he claimed.
“This becomes impossible when one considers there are currently only 35 state attorneys in Gauteng, all with other fairly substantial responsibilities.
“Our judicial system is hopelessly under-resourced to meet this demand, as illustrated by the current situation,” added Erasmus.
He said that even if all the state attorneys did no other work, and their workload is considerable, and every attorney conducted one mediation per day, the backlog would continue to grow.
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Erasmus warned that these practical constraints, combined with the financial and procedural burdens on plaintiffs, mean that the unintended consequences of the directive may outweigh its intended benefits.
“Mediation can play a valuable role, but not when imposed on a scale for which neither the RAF nor the court system has the capacity… This is essentially going to prevent people having access to justice and the chance to have their case heard – ever, at the current rate,” he said.
The urgent supplementary affidavit, deposed by Erasmus, was lodged in support of a challenge launched by Pipla against the legality and constitutionality of the practice directive issued by Gauteng Judge President Mlambo, which was implemented in the Gauteng Division of the High Court in April this year.
The directive made mediation of civil cases compulsory in the Gauteng Division before they were enrolled on the court rolls.
Pipla initially approached the Constitutional Court in May this year to challenge the legality and constitutionality of the directive, arguing that it infringed on the constitutional right of access to courts, conflicted with Rule 41A of the Uniform Rules, and was unworkable in practice.
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Reducing the backlog
The directive was implemented in an attempt to reduce the backlog of cases in the division, which to a large extent has been caused by the number of RAF default judgment cases on the court rolls.
Deputy Judge President of the Gauteng Division of the High Court in Johannesburg, Roland Sutherland, issued a notice in June 2024 to 42 entities, including various attorney and advocate associations, about the civil trial roll lead times in Johannesburg.
Sutherland said practitioners ought to be alarmed by the dates that are at present being issued for civil trials.
“The furthest dates issued are in November 2027, three and a half years hence. Dates in 2028 are about to be allocated,” he said.
Nicolette de Witt, chairperson of the High Court Committee of the Pretoria Attorneys Association (PAA), told Moneyweb in July that civil trials in the High Court in Pretoria are currently being allocated for January 2029, and the waiting time between the date of allocation of civil hearing dates and the hearing date itself “has reached an astonishing period of four and a half years.”
“These lead times are the longest they have been in the history of this division of the High Court.
“Under the prevalent circumstances… in Pretoria, the civil justice system is failing South African citizens and depriving them of their Section 34 constitutional right of access to the courts,” she said.
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Impact of mandatory mediation directive
FANews reported in June this year that the Constitutional Court had refused direct access and dismissed an application by Gert Nel Attorneys to challenge mandatory mediation requirements.
It said the court did not consider nor pronounce on the merits of the application, and Gert Nel Attorneys will continue its challenge of the directive in the High Court.
FANews said a further application challenging the validity and constitutionality of the directive was instituted by a road accident victim in the High Court.
Meanwhile, Erasmus said a revised directive was issued by Acting Judge President Aubrey Ledwaba on 9 June 2025, which he described as “a commendable effort to partially alleviate prejudice to plaintiffs who have waited for years for their trial date and who were at risk of a lengthy postponement should the RAF fail to mediate”.
This article was republished from Moneyweb. Read the original here.
