Addressing the crisis in Gauteng’s civil justice system: The role of mediation and rule 41A compliance

November 1st, 2024
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Picture source: Getty/iStock

Gauteng’s civil justice system is in crisis. On 4 June 2024, Deputy Judge President Roland Sutherland indicated in a document titled ‘Bulletin of lead times for set-down dates in Johannesburg as at 31 May 2024’ that practitioners should be alarmed that dates for hearing are about to be allocated for 2028 and further stating that ‘the courts, as organs of state, whose function it is to render an effective litigation service are severely compromised by the lack of judicial capacity to meet the demands of the litigating public.’ The crisis has also not escaped the watchful eye of the media, who reported that in Pretoria, dates are allocated for January 2029 as of 25 July 2024 (Roy Cokayne ‘Gauteng civil justice system in crisis’ (www.moneyweb.co.za, accessed 23-9-2024)).

Legal practitioners and the judiciary can no longer afford to ignore the elephant in the room: Non-compliance with r 41A is an everyday occurrence, thereby contributing to the backlog crisis in the High Courts, which affects the basic human right to have access to courts. From an analysis of case law, courts are generally reluctant to enforce the rule to such an extent that it has practically become obsolete in a time when it is needed most. With a co-operative effort of legal practitioners and the judiciary, the will to comply with the rule may be restored and the crisis can be alleviated and averted in the future. In this regard, legal practitioners will be reminded of their professional duty to inform the client of mediation during consultation and to comply with r 41A. It will further be explored how non-compliance with r 41A may justify a de bonis propriis cost order. It should be stressed that this article is not meant to promote mediation, but to simply examine the potential repercussions for non-compliance with r 41A.

It is simple logic that some matters can be resolved through alternative dispute resolution processes such as mediation and that matters that were successfully mediated have the effect of lightening the caseload of the courts. In Nomandela and Another v Nyandeni Local Municipality and Others 2021 (5) SA 619 (ECM) at para 10 it was pointed out that the rule should be complied with to ease congested court rolls and to achieve less costly and speedier resolution of disputes. In Nedbank Limited v Wesley Groenewald Familie Trust and Others [2021] JOL 50593 (FB) at para 9 it was stated that ‘the rule’s objective is the expedition of disputes through mediation and where no resolution of the matter is possible, to identify issues that require adjudication.’ Therefore, even if the parties cannot resolve the whole of their dispute, the definition of ‘dispute’ in terms of r 41A(1) relates also to ‘an aspect thereof’, and therefore, mediation can also assist in limiting the duration of a trial by settling issues that are common cause, which in turn also places a lesser burden on the judiciary (see for instance N Lawrenson and P van den Heever Expert Evidence in Clinical Negligence: A Practitioner’s Guide (Cape Town: Juta 2015) at ch 8).

Rules 41A(2)(a) and (b) simply state that notices be exchanged at the outset of legal proceedings indicating the litigants’ stances on mediation and the reasons for their stances. The issue of mediation can also be revisited by the parties themselves or as directed by the judge at any stage before judgment in terms of r 41A(2). Nothing, therefore, prevents the revisitation of mediation while waiting for dates far in the future. The notices are without prejudice and need not be filed at the registrar (r 41A(2)(d)). Because the notices are without prejudice, a party should not be penalised for non-disclosure before the conclusion of the hearing (contra the Nomandela case at para 9). The rule is not overburdensome and serves as a valuable tool to remind legal practitioners of their legal duty to advise clients on the option of mediation at the outset.

Besides legal practitioners feeling inundated with compliance demands, it may be that a legal practitioner may become so engulfed with the intricacies of a legal problem, that advising on mediation falls by the wayside. In this regard, legal practitioners will have to develop tact and discipline. The professional duty of legal practitioners to advise on mediation is not new and this duty forms the rational basis for r 41À, which was promulgated in March 2020. This duty is most aptly described by CG Marnewick in Litigation Skills for South African Lawyers 4ed (Durban: LexisNexis 2019) at 50 that ‘it is the professional duty of every legal practitioner to advise clients on the most suitable method for the resolution of their disputes. This can only be done after weighing up the advantages and disadvantages of the alternatives and having regard to the particular facts of the case.’ Marnewick further indicates that in some instances, it will cut out the lawyer completely. ‘That may not seem like a good outcome for the lawyer, but whether a particular outcome is satisfactory or not, has to be judged from the client’s perspective, not the legal practitioner’s.’ This professional duty is also not unique to South Africa. Dyson LJ in Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 ruled at para 11 that ‘all members of the legal profession who conduct litigation should now routinely consider with their clients whether their disputes are suitable for ADR.’

Legal training must, therefore, emphasise this duty during the consultation process and the consultation process should not be viewed as less important in any curriculum. In the participatory model of consultations, clients actively participate in the decision-making process and legal advice is required for them to provide the legal practitioner with an informed instruction. The participatory model supports the client to be legally educated and compliments modern democratic values (see in this regard Riette du Plessis Effective Legal Interviewing and Counselling (Cape Town: Juta 2019) at 4 and others cited). For a legal practitioner to advise the client, such practitioner must be aware and have knowledge on the option of mediation. It is indeed misguided to determine the best interests of the client without the client’s participation.

In my featured article ‘Court-annexed mediation: Should it be embraced by the legal profession?’ 2015 (April) DR 24, emphasis was placed on why mediation should be embraced by the legal profession. Though mediation undoubtedly may be beneficial, it is important during consultation to provide balanced advice, deliberating the pros and cons and the appropriateness of mediation. Obviously, in urgent matters, mediation is generally inappropriate and compliance with r 41A cannot be sought (Ethypersadh v Minister of Police NO and Others (GP) (unreported case no 2023-064414, 25-7-2023) (Van der Westhuizen J)). The costs of mediation need to be weighed against the costs of litigation. Mediation may prove to be a costly additional expense, especially if the mediation was unsuccessful and the mediator’s fees are high, and for this reason arbitration (which need not always be expensive, but often is) needs to be considered to ensure finality. Though litigation is often seen as the more protracted and expensive option, it should be kept in mind that the judge is not compensated by the parties.

A robust approach was seen in Limpopo. Judge President of the Limpopo Division of the High Court, Ephraim Makgoba issued a Practice Directive dated 20 July 2021. He thereby authorised the registrar to decline to issue the court process if the rule has not been complied with and with effect of 1 September 2021, the court will strike the matter from the roll where the rule has not been complied with. It appears that this approach did not find general favour throughout the country.

In the Nomandela case at para 10 the court ruled against the removal from the roll as follows: ‘… in my view, the present application raises important principles relating to compliance with departmental regulations, the respondents’ own policies and alleged infringement of constitutional rights to dignity and to lawful and reasonable procedural administration. In the light of this, I am of the view that, in the interests of justice, those issues call for immediate resolution, than to remove the matter from the roll in order for the litigants to pronounce on whether they would agree or oppose mediation.’ The following dicta should, therefore, not be quoted out of context or ironically: ‘Finally, it is not to be underestimated that the rules are meant to be complied with. However, it has been stated often by the courts that the rules are meant for the court, and not the other way round.’ It is unsure what Majiki J meant by stating in the preceding paragraph: ‘I have not been made aware that there are available, adaptable instruments in place, including personnel, for effective implementation of the rule in this division.’

Non-compliance with r 41A does not constitute a substantive defence (Growthpoint Properties Ltd v Africa Master Blockchain Company (Pty) Ltd (GJ) (unreported case no 2020/43806, 26-10-2022) (Maier-Frawley J)), and could strictly be regarded as procedural. Therefore, r 27(3) or r 30 may find application. It can also be raised as a point in limine, but in MEC, Department of Public Works Eastern Cape Province v Moleshe (ECB) (unreported case no 751/2020, 31-1-2023) (Laing J) no prejudice was indicated in the application before the court. Laing J held in para 17 that prejudice needed to be demonstrated by either showing that the non-compliance has hampered the preparation and conduct of his or her defence, or ‘that it has caused harm in the wider sense’ for the court to ‘be satisfied, overall, that it would be in the interests of justice for the case to be removed from the roll.’

Non-compliance as an issue of procedure as opposed to the substantive law, becomes blurred when it is argued that the crisis is infringing on everyone’s right to have access to courts in terms of s 34 of the Constitution. It is for this reason that non-compliance with r 41A is not merely of a technical nature (contra para 27 of the Growthpoint Properties case). Footnote 22 appended to para 27 of the Growthpoint Properties case, however, makes reference to MB v NB 2010 (3) SA 220 (GSJ) at para 60 where the court noted its intention to limit the fees, which the attorneys could charge because of the attorneys’ failure to send the matter to mediation at an early stage and that this should be ‘visited by the court’s displeasure’.

Therefore, non-compliance with r 41A can also be raised in arguments pertaining to costs. It is submitted that compliance with r 41A provides prima facie evidence that the legal practitioners properly consulted with their clients and received an informed instruction from them. However, non-compliance with the rule provides prima facie evidence that legal practitioners act without the informed instructions of their clients.

In Mahomed v Nagdee 1952 (1) SA 410 (A) at 420H it was held that a court has a discretion to award costs and that ethical considerations may well play a part in the exercise of that discretion. A court can generally refuse costs to a successful party in whole or in part, award costs on an attorney-and-client scale, or grant costs de bonis propriis. Regarding the professional duty to advise on mediation, a court may be justified in granting a de bonis propriis cost order as the client should not pay for the dereliction of duty on behalf of the legal practitioner. In Washaya v Washaya 1990 (4) SA 41 (ZH), for instance, an attorney who acted without the client’s instructions and in so doing wasted the court’s time, was ordered to pay costs de bonis propriis. Reference can also be had to the locus classicus Vermaak’s Executor v Vermaak’s Heirs 1909 TS 679 at 691 requiring mala fides, negligence or unreasonableness.

Rule 41A is, therefore, not a detusked white elephant from the Rules Board worthy of being overlooked by Krylov’s inquisitive man. The rule is in fact much needed and can directly address the crisis litigants and the courts are facing today.

Benjamin Charles van der Berg LLB (UJ) is a legal practitioner at BC van der Berg Attorneys in Johannesburg.
This article was first published in De Rebus in 2024 (Nov) DR 28.

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