A law firm that contends Gauteng judge president Dunstan Mlambo’s directive introducing mandatory mediation for civil cases is unlawful judicial overreach, has turned to the Constitutional Court to have the directive declared invalid.
Attorney Gert Nel, director of Gert Nel Attorneys specialising in personal injury claims and Road Accident Fund cases, filed an urgent application to the top court last Friday, three days after the directive was implemented for the High Courts in Gauteng.
Mlambo made it mandatory for civil cases to go through mediation before trial last week as a measure to curb an intolerable caseload in High Courts, which had started issuing dates for civil case trials to be heard in 2031.
The application to the Constitutional Court takes place as Mlambo is among four candidates considered by President Cyril Ramaphosa to fill vacant position of the deputy chief justice.
Before the implementation, the judge president issued a draft directive in March and asked for comments from law bodies, practitioners, mediation organisations, mediators and litigants in general.
In the application for direct access to the Constitutional Court, Nel argued the directive was “constitutionally invalid”.
He said before the implementation of the directive on April 22, the draft directive was treated as binding policy when litigants applied for trial dates.
“The urgent direct access application ... concerns the constitutional limits on judicial power and an imminent erosion of rights through unlawful judicial overreach,” Nel’s application read.
“On the express instruction of the head of court for the Gauteng division [Mlambo], court officials have refused to process civil trial date applications and allocate trial dates since approximately March 25 2025.”
Nel said litigants faced “tangible prejudice”. Their cases had been stalled and existing trial dates were put in jeopardy. “Now that the directive and mediation protocol have been adopted and implemented, this prejudice has now been confirmed and intensified.”
Mlambo, as head of court, does not have the legal power to implement mandatory mediation, Nel argued.
Mlambo implemented the directive in terms of a section of the Superior Courts Act, which reads: “The management of the judicial functions of each court is the responsibility of the head of that court.”
Nel said neither the act nor the constitution empowered Mlambo to issue a practice directive that overruled, amended or contradicted promulgated legislation by mandating compulsory mediation for all civil trials in the Gauteng division.
Nel argued Mlambo took on the role of the legislature.
“This honourable court has reaffirmed that the main engine for law reform should be the legislature, not the judiciary — a clear call to respect the separation of powers in our constitutional framework,” he said.
He wants the court to set aside the directive retrospectively and direct the registrar to reinstate civil trial dates allocated before the directive.
According to the directive, Road Accident Fund (RAF) cases — which fill the High Courts’ rolls daily — allocated for 2026 had been withdrawn.
“All trial dates issued to cases against the RAF on dates from January 1 2026 are withdrawn. All such cases set down after that date must seek a fresh set-down date and the request must be accompanied by a mediator’s report,” the directive read.
Nel said the directive would be costly to litigants due to mediation fees.
“For many litigants-particularly personal injury claimants, victims of medical negligence, and other ordinary individuals seeking relief, mandatory mediation introduces additional costs, delay, and procedural burden.”
“If a plaintiff is unable to secure a trial date without first ensuring and funding a mediation process, regardless of the other party’s stance, the effective result is a narrowing of the constitutional rights of access to courts.”
When the draft directive was issued, advocate Justin Erasmus, chair of the Personal Injury Plaintiff Lawyers Association (Pipla), expressed the same concerns as Nel.
“A sudden shift like this is unfair to plaintiffs who have already waited years for their day in court,” he said.
While acknowledging Mlambo’s directive was a “well-intentioned innovation”, he said it could not go unchallenged just because it was well-meaning.
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