Gauteng judge president Dunstan Mlambo says he will propose a national implementation of mandatory mediation for civil cases before trial that he introduced in his division this year.
Mlambo was interviewed by the Judicial Service Commission (JSC) on Wednesday in the race to be the country’s deputy chief justice.
He is up against Free State judge president Cagney Musi and Northern Cape judge president Pule Tlaletsi. The position has been vacant since Mandisa Maya was appointed chief justice in July 2024.
In the interview Maya asked Mlambo whether he would push for the national implementation of his directive in Gauteng that makes it mandatory for civil cases to go through mediation process first before trial. The directive was meant to help curb backlogs bedevilling the courts.
The high courts in the division had only started issuing dates for civil case trials to be heard in 2031.
Mlambo said he would take the measure for a national rollout in the short term to tackle backlogs in affected divisions.
“I would request the chief justice to get the heads of courts to wrap their heads around and see how we can extend the ambit of a directive of this nature or even improve it to apply it to other divisions,” he said.
The national rollout will only be possible if the directive survives the legal showdown against it. Gert Nel Attorneys, a law firm based in Pretoria dealing with Road Accident Fund (RAF) cases, tried to get the Constitutional Court to rule the directive as unlawful judicial overreach.
The application and that of the Personal Injury Plaintiff Lawyers Association were refused without being heard by the apex court but will be contested in the high court.
Mlambo said the issue of national rollout of mediation would be clarified by a bill drafted by the SA Law Reform Commission chaired by retired justice Chris Jafta.
While Mlambo’s decision was applauded, some in the legal fraternity pointed out the real problem was a shortage of judges.
Mlambo, who leads 46 judges, conceded the high courts needed to be better resourced to deal with mounting cases.
If appointed as the deputy president, Mlambo said he would engage the executive in addressing issue of “powerful people” attacking judicial officials after court judgments against them.
This is a trend that has been popular with politicians in SA such as the JSC commissioner and EFF leader Julius Malema.
“We cannot have political heavyweights calling judges counterrevolutionaries,” Mlambo said.
He also faced questions on the transformation of the judiciary.
“In your presentation you highlighted the problem of poverty and inequality that bedevils the creation of a new SA. As the deputy chief justice how do you see the role of the constitution in addressing the economic inequality in SA?” Tembeka Ngcukaitobi, a JSC commissioner, asked in the interview.
Mlambo, in the presentation, described himself as an activist judge, adding that he was committed to ensuring the constitutional project of socially transforming SA would be realised.
“I am an activist judge because I understand my role in terms of the constitution to use the law to ensure the SA society is transformed.”
Ngcukaitobi said some judgments were against economic transformation of black people and the bench applied rules but forget some of the rules were developed during apartheid.
Mlambo said one of the judges once told him the bench “sold out” by failing to ensure realities of citizens are transformed.
“Generationally maybe we sold out in being conservative and interpreting things,” Mlambo said adding the legal fraternity had been conservative and there was a need for social awareness and training that challenged judges on this aspect.
Mlambo was applauded for transforming the Gauteng bench on race and gender.
Part of the panel, Supreme Court of Appeal president Mahube Molemela, who declined President Cyril Ramaphosa’s nomination as a candidate for the deputy chief justice post, said she was among legal professionals recruited to the bench by Mlambo.
“I must attest you have empowered a number of females, and I am one of those,” she said.
At the time of publication the JSC was still interviewing Tlaletsi. Musi will be interviewed on Thursday.
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