Capacity: Judge President, Gauteng
First appointed as judge: 1997 – Labour Court
Further appointments:
2000 – Gauteng High Court
2005 – Supreme Court of Appeal
2010 – Judge President, Labour Court
2012 – Judge President, Gauteng High Court
Gender: Male
Ethnicity: African
Date of Birth: September 1959
Qualifications: B.Proc (Limpopo) LLB (Unisa) LLD (honouris causa)(UFH)
Key judgments:
- South African Police Services v Solidarity obo Barnard 2013 (3) BCLR 320 (LAC); (2013) 34 ILJ 590 (LAC) (2 November 2012
- Law Society of South Africa v President of the Republic of South Africa [2018] 2 All SA 806 (GP)
- Multichoice (Pty) Limited v National Prosecuting Authority, In Re; S v Pistorius 2014 (1) SACR 589 (GP) (25 February 2014)
- S v Egglestone 2009 (1) SACR 244 (SCA) (30 May 2008)
- Freedom Under Law v Motata (33227/2020) [2021] ZAGPPHC 14 (28 January 2021)
Candidate bio:
As judge president of the Gauteng High Court in Johannesburg and Pretoria, Judge President Dunstan Mlambo heads the largest and busiest high court system in the country. On paper, Mlambo’s CV makes him most prepared to assume the hefty role of chief justice of South Africa but there are other factors at play.
Prior to taking judicial office, Mlambo was an attorney in private practice as a public interest and trade union lawyer. He started his legal career as a legal assistant in the KaNgwane Government before joining the Legal Resources Centre as a legal fellow in 1987. He later entered SA’s ‘Magic Circle’ in 1988 by joining Big 5 corporate law firm Bowman Gilfillan as a candidate attorney, rising through the ranks to become associate partner in 1993 at age 34. He then branched off to establish his own law firm Mlambo & Modise Attorneys in from 1995 until joining the bench in 1997 as Labour Court judge.
Mlambo’s tenure in the Labour Court did not last long, as he moved to the Gauteng High Court, Johannesburg in 2000, and spent five years there. In 2005 he was promoted to the Supreme Court of Appeal, as one of the first black judges in that court. Later, in 2010, in a move that surprised many, Mlambo put his name forward to head up the Labour Court as judge president, succeeding fellow chief justice candidate Deputy Chief Justice Raymond Zondo. The General Council of the Bar in its submission to the JSC on Mlambo describes this move as “unusual”, noting that “to prefer hard work over status is real ethical integrity, where the focus of the hard work is to make the busiest [court] division in the country work better.” Although Mlambo had now entered formal judicial leadership as Judge President, he would leave two years to take on a tougher role as Judge President of the Gauteng High Court, the largest and busiest court system in the country. It is in this latter role that Mlambo has made his mark, and which some believe has prepared him to be chief justice.
Judge President Mlambo is highly regarded as a judicial leader and administrator.
When the COVID-19 pandemic hit and the country went into lockdown in March 2020, Mlambo issued the first set of directives on how courts should operate in the interim. The Chief Justice only issued directives several days later. The Gauteng High Court has been praised for functioning with “relatively little disruption” and for running some trials via remote hearings during the COVID-19 lockdown. However, media reports have also described a “collapse of infrastructure” at the Pretoria High Court, one of the two seats making up the Gauteng High Court..
Mlambo also has a reputation as an innovative leader. He is praised for introducing and sustaining Caselines, a virtual case management system that allows the filing and processing of court documents online. Gauteng is so far the only high court where a case can be dealt with completely online from start to finish.
In 2018 Mlambo re-introduced the ‘premium service’ of the Commercial Court in Johannesburg to try and claw back from private arbitration some of the complex commercial cases which are essential to the future development of commercial law. More significantly, Mlambo was also instrumental in the establishment of both the Mpumalanga and Limpopo High Courts as standalone court divisions, complete with brand-new swanky buildings.
Mlambo is also known to place a premium on collegiality, leading the county’s largest contingent of almost 90 judges spread between Johannesburg and Pretoria (compare this to the second highest, the Western Cape, with 45 judges). The General Council of the Bar notes that there is “significant unity” among judges in Gauteng, and many of them have, in public interviews, noted that they operate as a family and this is fostered by the Judge President.
Mlambo has taken significant strides in transforming the judiciary. Gauteng regularly attracts a high number of high-calibre lawyers to come on as acting judges, many of them black and women advocates with lucrative practices. It is said that Mlambo approaches many of these personally. Of the 16 judges appointed to Pretoria between the period between 2012 and 2021, 11 of them were women. Of the 21 judges appointed to Johannesburg in the same period, 12 of them were women.
However, Mlambo’s style of recruiting acting judges is also criticised by the GCB for being “opaque, lacking transparency, arbitrary and a form of gatekeeping without a discernible criteria for the application process [and] without tangible peer-review safeguards.”
Mlambo is not merely an administrator, however, but an impressive jurist in his own right. He has written significant judgments such as President of the Republic of South Africa v Office of the Public Protector, holding former President Zuma personally liable for costs in an abandoned attempt to interdict the Public Protector’s “State Capture” report. This decision has recently been upheld by the Supreme Court of Appeal. In Multichoice (Proprietary) Limited v National Prosecuting Authority, Mlambo found that the Oscar Pistorius murder trial could be broadcast.
Mlambo also wrote the judgment of the Labour Appeal Court in South African Police Services v Solidarity on behalf of Barnard, which is probably the most significant South African case on whether affirmative action measures constitute unfair discrimination. Mlambo found that the impugned decision not to promote Barnard, a white woman, was justifiable. The decision was overturned by the SCA but upheld by the Constitutional Court.
One disadvantage he faces in the race for chief justice is that, unlike his other candidates for chief justice, Mlambo is unfamiliar with the inner workings of the Constitutional Court as he has, until very recently, never acted in that court.
Mlambo has a widely recognised public profile, although he is also seen as a politically divisive figure. This seems to be an unfair consequence of Mlambo taking on the traditional role of heads of courts sitting in some of the most complex, high-profile cases in that court. Mlambo has presided over some of the most ‘politically sensitive’ cases in the last few years, involving national state institutions and politicians.
Outside of the judiciary, Mlambo has made significant contributions to social justice-related causes in particular. He sat a board member of Legal Aid South Africa for 20 years, including several as chairperson. In this role, he led the institution to a series of clean audits and away from the ‘judicare’ model (where private lawyers would join cases on an ad hoc basis and claim fees) to the more successful ‘justice centre model (where salaried lawyers are permanently appointed to Legal Aid justice centre to offer services to indigent). He resigned in 2019 to become chairperson of the newly established Community Advice Offices of SA (CAOSA), a national organisation supporting community-based paralegals in townships and rural areas.
Mlambo has addressed numerous international conferences on topics such as legal aid, refugee law, judicial ethics, and constitutional law. He was recently elected as the Africa Chapter president of the International Association of Refugee and Migration Judges.
Asked what he regards as his most significant contribution to the law and the law pursuit of justice, Mlambo, in his nomination form submitted to the JSC says that:
“I have…effectively used the tools of judicial management, my strong people skills and my understanding of the enormous expectation on the legal system to advance great efficiency in both process and outcomes in my work as a leader in the judiciary.
I subscribe to the principle that leaders of the judiciary should be accessible to the judges they lead, that an efficient and enable Judiciary is key to the fulfilment of the rights in our Constitution. My leadership oof Legal Aid SA, the Labour Court, and the Gauteng Division of the High Court (both busy and challenging divisions) has instilled in me the crucial skills of leadership – the ability to listen, to motivate, to be visionary, to take people along with you, to lead by example and finally, to act as a uniting force in bringing together diverse people for a common good.
The law, its promise and its fulfilment remain important in how we unfold as a society and in how we attain the constitutional promise of social justice. I have been privileged to have been a part of this journey for most of my life and remain ready and willing to continue to do so.”
Born in Acornhoek in Mpumalanga, Mlambo holds B. Proc law degree from the University of the North (now University of Limpopo), an LLB from Unisa and an honorary doctorate from the University of Fort Hare. From the breadth of his experience, and particularly as a leader able to work complex systems towards higher efficiency and effectiveness, Mlambo seems to be the most prepared for the role of chief justice. However, his lack of experience in the apex court and his high political profile might just count against him. His interview is one to watch.
February 2022 Chief Justice Interview
Watch an interview with Judge President Dunstan Mlambo:
