Rule 41A says that parties to a dispute are mandated to consider mediation as a dispute resolution mechanism.
With the introduction of mandated mediation in the rules of court, there is the opportunity for rape cases to be finalised without having to be heard in full by the court. But if there is no response from the state, then the case has to go to trial, as a recent case reveals, writes Sheena Swemmer.
The Centre for Applied Legal Studies (CALS) has been supporting the survivor of a rape that occurred on the premises of a High School in Johannesburg in 2015. Through CALS, the survivor launched a case to sue the MEC of the Gauteng Department of Education for failing to protect her from sexual violence while she was at school and the failure of numerous educators to report her rape to the relevant authorities, as required by law.
CALS launched the case against the MEC in 2018, and for six years, the client has waited for the case to proceed to court. However, there was light at the end of the tunnel when during the various Covid-19 lockdown periods, the judiciary introduced a rule which mandated parties in litigation to engage in mediation before a trial date could be given.
Rule 41A says that parties to a dispute are mandated to consider mediation as a dispute resolution mechanism. The rule was predominantly put in place to attempt to curb the high numbers of cases the high courts are faced with hearing each year. For example, the Annual Judiciary Report for 2021/2022 reports that Johannesburg had a total of 19 257 cases and Pretoria had 36 321 cases. With the sheer volume of cases faced by our high courts every year, it is accurate to say that justice has too often been delayed.
With the introduction of mandated mediation in the rules of court, there is the opportunity for cases to be finalised without having to be heard in full by the court. This is a ‘win’ for all concerned, as parties do not have to wait years for a date for trial, and the judiciary experiences a reduction in the caseload, thus time and resources are spared.
However, CALS’ client has not been given the benefit of having her matter resolved through mandated mediation due to the state attorney’s failure to respond to any correspondence, both from CALS and even Deputy Judge President Sutherland. Despite the Deputy Judge President requesting updates around mediation and giving CALS and the state timelines to pursue mediation, the state’s attorney has never acknowledged receipt of any correspondence or bothered to reply to the letters from the Deputy Judge President.
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Why does this matter? Well, first, this means that the case will need to go to trial simply because the state has failed to respond. So, the court, CALS and the state attorney’s office will use time and resources on a case that may well have been resolved through mediation. The second reason this matters is because this is an instance of the ‘head not knowing what the tail is doing’.
In terms of the Constitution, the judiciary, the executive and the legislature are all part of ‘the state’. The state attorney and the judiciary are ultimately part of the same entity. Now, when the judiciary creates a rule in order to try to achieve a decrease in caseload for the high courts’ and thus a reduction in costs and time, and the state attorneys choose not to pursue the mandated route for cases or simply choose never to reply to correspondence. Then the state is then thwarting its own progress.
However, it is not only isolated to instances of mediation, the state also fails to respond to many other forms of legal correspondence. For example, in the newly launched case challenging the constitutionality of retaining consent as a definitional element of rape, CALS served its application on various state departments. All these departments failed to respond in any way to the application, neither giving an indication of an intention to oppose or to abide.
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Although South Africa has legislation which sets out the mandatory timeframes around serving court documents, the state often chooses to ignore these timelines and will, on occasion, simply appear in court on the day of the hearing, informing parties of their intention to oppose.
The state’s failure to uphold the rules of the court has far-reaching implications, as I have shown. The effects include the wasting of time and resources. However, the effect this has on victims of violent crimes such as rape survivors, is especially egregious. For example, CALS’ client suffered a sexual violation at a state school, and the school failed in its mandate to protect her. She has now waited over six years for justice through the court, however, due to the state’s inaction through failing to follow its own mandated rules, she will now wait for her trial date, where sometime in the future, she may hopefully see justice.
– Dr Sheena Swemmer is with the Centre for Applied Legal Studies at the University of the Witwatersrand.
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