Justice Sector and the Rule of Law - AfriMAP

There have been several initiatives aimed at reducing the cost of access to the courts by improvingthe efficiency with which claims are processed. In the absence of small claims courts toenable individuals to litigate less valuable cases at low cost, 530 in 2000, the courts adopted theSubordinate Courts (Small Claims Procedure) Rules as subsidiary legislation under the CourtsAct. 531 The rules permit magistrates to apply special, and more simplified, procedures to smallclaims. However, the potential of these to improve the ability of the majority of people to enforcetheir rights remains constrained by other factors discussed elsewhere in this report which limitaccess to the courts generally, including physical inaccessibility of the courts and the use ofEnglish as the official language in judicial proceedings. The reduction of some costs in litigationis, therefore, not enough to facilitate access to the formal court system for the majority of peoplewho, consequently, have to rely mostly on informal systems of justice.The Constitution identifies as a ‘principle of national policy’ that the state should set asone of its goals the peaceful settlement of disputes. To this end, it should adopt ‘mechanismsby which differences are settled through negotiation, good offices, mediation, conciliation andarbitration.’ 532 In the spirit of that principle and in the exercise of rule-making power grantedunder section 67 of the Courts Act, 533 the chief justice promulgated the Courts (MandatoryMediation) Rules in August 2004. 534 The rules require all proceedings in certain matters to bemediated before being subject to trial. 535 Under this scheme, mediation is performed by mediatorswho are appointed by the parties to a dispute from a list compiled by the assistant registrarof the High Court and Supreme Court of Appeal with the approval of the chief justice. 536Among other things, the rules also provide that, during mediation, the parties should striveto reduce cost and delay, and to facilitate the early and fair resolution of their dispute. 537 Onelimitation of these rules is that they are not applicable in a wide range of cases, including proceedingsthat involve interpretation of the Constitution, proceedings concerning the liberty ofan individual, proceedings commenced under the Subordinate Court (Small Claims Procedure)Rules, and proceedings for judicial review, summary possession of land, injunctions, expeditedoriginating motions and ‘any such matters where by law or practice, the trial is expedited.’ 538In spite of these limitations, the mandatory mediation regime has the potential of reducingthe cost of legal action in a significant number of cases. However, since the rules have been in