Gauteng Judge President Dunstan Mlambo faces more allegations of misconduct after he was accused of being biased in a case against the Minister of Defence and Military Veterans.
PAC’s military wing, Azanian People’s Liberation Army (Apla) veteran Mangaliso Petse accused Mlambo of dragging his case to ensure a predetermined outcome favoured the Department of Defence and Military Veterans against him.
Both Mlambo’s office and the office of the Chief Justice did not respond to questions sent on Tuesday.
The veteran’s allegations follows the Sunday Independent report last week on accusations of unethical conduct against Mlambo. Machaba Attorneys accused Mlambo of being unethical after he allegedly received a gift from the University of Johannesburg’s vice-chancellor, Professor Letlhokwa Mpedi, amid the ongoing court case between the institution and its former employee Lyness Matizirofa, who is represented by the attorneys.
The attorneys were concerned that this could influence their case against the university.
Petse, joined Apla in exile in 1987, age of 14, has been in a dispute with the department after he was paid a once-off lump-sum payment of R52 629 and told that this was all he would get in terms of regulations of the Military Veterans Act.
Petse returned to South Africa with permanent injuries in 1993 and qualified for an 80% disability rating in terms of the Military Pensions Act.
However, the department refused to pay him a pension annually. He launched a court challenge in the South Gauteng High Court 2016. The court ruled in his favour in May 2022. But the department opposed the ruling.
Petse said he became suspicious of Mlambo when the matter was removed from the court roll in February last year. Petse said the matter was presented under a new case number and the state attorney, in the letter issued to Mlambo’s office on March 7, 2023, creating an impression that his previous attorney of record had agreed that they would approach Mlambo’s office for a directive on how to proceed with the matter.
In the letter, the state attorney said after the matter was struck from the roll, the parties engaged each other about the further conduct of the application to reinstate and re-enrol the application for leave to appeal. The upshot thereof was that the parties agreed to approach Mlambo or his deputy for guidance and directive on whether the application for reinstatement of application for leave should or ought to be set down on the unopposed motion roll to be heard by another judge or simply be placed before Judge Raylene Keightley, who ruled by removed the matter from the roll.
Petse’s attorneys, Thomson-Wilks Inc, in response, said the state attorney’s conclusion was based on an “off record” discussion.
“It is denied that this was specifically agreed that the parties approached Deputy Judge President of Judge President for guidance or directive regarding whether the application for reinstatement should or ought to be set down on the unopposed motion roll to be heard by another judge or simply enrolled to be placed before Keightley to adjudicate same,” read the letter.
Thomson-Wilks said this was simply mentioned as a request on the matter by the state attorney, that approaching the Deputy Judge President or Judge President for the directive was an option open to them, should they deem it appropriate.
Petse said realising that there was no response forthcoming from Mlambo's office, his attorneys wrote another letter to the state attorney regarding feedback from the Judge President's office in April, last year. Petse said his attorneys also stated that the matter should proceed in court without any further delays, given that there are Uniform Rules that direct which procedure should be followed.
In response, the state attorney said, in a letter dated April 6, 2023, that they were all waiting for a directive from Mlambo regarding the further conduct of the reinstatement application, as per correspondence by the parties to the Judge President.
The state attorney also instructed Petse’s attorneys to address their concerns and email directly to Mlambo by 2pm, failing which they would be reported to the Judge President.
Petse said Mlambo remained quiet until his attorneys sent another letter informing him that they would proceed with the Rule 30 application, given that there was no response from his office and that should such a directive be issued they would still remain naturally guided by the same.
“The Rule 30 application was then issued and filed on May 2023, and the state attorney did not file a notice of intention to oppose and or an answering affidavit,” said Petse, who added that the application was enrolled for a hearing date on July 23, 2023, in the form of a Case Management Directive.
Petse said this was issued on the eve of the hearing and disguised as a Case Management Directive regarding the Leave to Appeal, and did not reflect on which Uniform Rules of the High Court Mlambo applied in reaching such a conclusion.
“The Judge President issued the case management directive that changed the Leave to Appeal procedure and provided that all Leave to Appeal matters have to be brought before the trial Judge for consideration. Thereafter, they may proceed and be heard by other Judges if one of the parties is involved. It is only under circumstances that a trial Judge is no longer available to hear the matter owing to reasons of being incapacitated and or deceased that the matter may be allocated to another competent Judge to deal with.
“If an appeal matter has been struck from the roll, the Uniform Rules provide that such a matter should be re-enrolled before the same Judge. It is only in matters where the Leave to Appeal was granted and it had lapsed after a period of 30 to 60 days that the party who has been granted Leave to Appeal can institute an application for reinstatement of the matter since there were delays in proceeding with the hearing of the appeal matter,” said Petse.
He said it was clear that Mlambo took a side in this matter by intervening with a Case Management Directive that was not informed by the Uniform Rules which regulate the Leave to Appeal procedure.
“He also did not refer to the relevant Uniform Rules that have guided him in pronouncing his well-considered view in terms of the Case Management Directive that was issued on that night,” said Petse.