The Constitutional Court has rejected an application for direct access to the court by a law firm that argued Gauteng judge president Dunstan Mlambo’s directive introducing mandatory mediation for civil cases was an unlawful judicial overreach.
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 in April, three days after the directive was implemented for Gauteng high courts.
Mlambo made it mandatory for civil cases to go through mediation before trial as a measure to curb an intolerable caseload in high courts. The courts had started issuing dates for civil case trials to be heard in 2031.
The apex court rejected the application for direct access this week.
“The Constitutional Court has considered the application for direct access. It has concluded that no case has been made out for direct access,” the court order reads.
The firm’s attorney Dylan Oelofse said they would file the case at the Pretoria high court as a matter of urgency after the top court’s rejection.
“We believe the issue is of such gravity that any further delay would be a disservice to the public and to the administration of justice,” he said.
The apex court does not usually grant direct access for matters that have not been heard in lower courts.
Oelofse said the firm was aware of the protocol but took the matter to the Constitutional Court to avoid a “conflict of interest” as Mlambo heads the province’s high courts.
If a judge is implicated in a case, the matter is allocated to a different judge.
“The judge president who issued the directive is a party to the dispute,” he said.
“Even if the matter is allocated to a different judge, the high court will still be placed in the difficult position of assessing the legality of a directive issued by its own leadership.
“This situation raises significant questions about judicial independence and impartiality. Moreover, any decision will almost certainly be appealed, potentially to the Supreme Court of Appeal and ultimately to the Constitutional Court, resulting in prolonged uncertainty.
“Nonetheless, given the Constitutional Court’s decision, we are compelled to proceed with the matter through the available judicial channels and will do so with diligence and [to try to] resolve [it].”
The firm pinned its case on the argument that Mlambo in changing operational rules of the courts took on a legislative role.
‘Unprecedented’
“The directive in question effectively suspends the statutory entitlement to a trial and imposes a mandatory mediation regime without any legislative basis. This is unprecedented, and in our view, unlawful.
“A judge president cannot, through practice directives, override legislation or curtail rights granted by statute.”
While Mlambo contended the directive was a measure to assist courts with the workload, Oelofse said it would not ease matters but worsen them.
According to the directive, Road Accident Fund (RAF) cases — which fill the high courts’ rolls daily — allocated for 2026 had been withdrawn.
“In practice, the vast majority of RAF matters settle only once a trial date is secured — typically just before the trial or even on the day of the hearing.
“If mediation does not result in a resolution (which we are already seeing), claimants must start the process anew.
“Stripping them of their court dates after such an extended wait is deeply unjust and profoundly disheartening.”
Oelofse said the firm was grappling with surging client anxiety over the directive that has been in place for a month.
Many legal bodies have welcomed Mlambo’s directive but raised concern that the real issue at courts is that the government has to hire more judges.
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