Three out of 1 000 – that is the number of mediations that have taken place over the last four months from just over 1 000 Rule 41A notices served on the RAF.

“The numbers tell a dismal story,” says Advocate Justin Erasmus, Chairperson of the Personal Injury Plaintiff Lawyers Association (PIPLA), which represents around 400 personal injury lawyers. Since April 2025, two large legal firms have served over 1 000 Rule 41A notices on the RAF. Only 35 have been answered, and just three matters have gone to mediation.  To date nothing has been settled.”

As a result, PIPLA filed an urgent supplementary affidavit on behalf of its members last week in the Gauteng Division of the High Court regarding the lack of functionality of the current revised mediation directive.

In May this year, PIPLA has initially approached the Constitutional Court to challenge the legality and constitutionality of the Practice Directive mandating compulsory mediation in civil matters in the Gauteng Division arguing that the directive infringed on the constitutional right of access to courts, conflicted with Rule 41A of the Uniform Rules, and was unworkable in practice.

Based on the last four months, it seems reasonable to assume the challenge was well founded. The RAF lack the capacity to reply to notices – let alone attend to actual mediations.

“The RAF simply does not have the capacity to mediate in volume,” says Erasmus.

Historically, Gauteng’s trial rolls carry about 300 matters per week. Mediation, by its very nature, is a protracted process taking at least a full day. “To keep pace and avoid any backlogs or bottlenecks,” says Erasmus, “300 mediations would need to be completed weekly – requiring at least 60 state attorneys dedicated solely to the task.  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,” he says.

Erasmus warns 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, and 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 concludes. 

It is anticipated the application will be heard later this year, or at least early in 2026.