Growing resistance against Stalingrad legal defence – Prof Pierre de Vos

The battle to remove South Africa’s Public Protector, Advocate Busisiwe Mkhwebane, took four years and consumed more than R160 million of taxpayers’ money, with her legal defence bent on dragging out the case and delaying her removal, employing every unethical and ethical legal tactic to avoid being held accountable. This tactic, known as the Stalingrad defence, has also been repeatedly employed by former President Jacob Zuma’s legal team to evade accountability. However, recently, this type of litigation suffered significant blows: President Zuma lost his private prosecution case against Advocate Billy Downer, and News24 journalist Karyn Maughan, and Advocate Mkhwebane was finally removed from her position as Public Protector. In an interview with BizNews, Constitutional law lecturer Pierre de Vos said that the Stalingrad defence strategy raises broader questions about South Africa’s legal system and the need for reforms to prevent the abuse of procedural rules in court cases. De Vos added that this tactic is not limited to the political field; it is a broader problem in the private sector where big companies and individuals with deep pockets undermine justice. Nevertheless, De Vos expressed optimism noting a shift in South African courts’ approach, indicating growing resistance against the Stalingrad defence. He said in recent court cases lawyers have been ordered to cover the cost of delays. – Linda van Tilburg

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Relevant timestamps from the interview

00:10 – Introductions
00:47 – Prof Pierre de Vos on what Stalingrad defence is
02:05 – Law and courts are used for political arguments
03:34 – On Dali Mpofu trying to take him to court
06:33 – On the Busisiwe Mkhwebane case
09:10 – The cost of the Public Protector’s case
10:55 – Where should the reform come from
13:35 – Lawmakers might be learning the wrong lesson from the fact that they finally got rid of Mkhwebane
18:37 – Taking journalists to court
19:12 – Conclusions

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Excerpts from the Interview

Stalingrad defence to prevent Zuma from having his day in court

So, the Stalingrad defence was coined by former President Jacob Zuma’s lawyer, Kemp J. Kemp, who has since passed away. He explained to the court that this is a Stalingrad defence, drawing an analogy to the Russians’ fight against the Nazis in Stalingrad. They intended to fight street by street, block by block, in a battle to the bitter end. Essentially, the Russians employed a strategy of delay and obstruction so that when winter arrived, the Nazis would be defeated, allowing them to push back. This is the essence of the Stalingrad defence: using both ethical and unethical tactics within the legal system, including court applications, to continuously stall and make it impossible for you to be held accountable through the criminal courts or any other tribunal for wrongdoings committed.

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Lawyers playing to a political audience and deep-pocket tactics

There are various factors at play in legal proceedings. One issue is that lawyers, representing their clients, often make political arguments. Some argue that this may be influenced by the fact that many of these proceedings are televised. Frequently, when Advocate [Dali] Mpofu makes a powerful argument, it is not solely for the benefit of the judge but also to appeal to the political audience. But then the second thing is, people with deep pockets, people with access to funds, either because it’s paid by the state, private benefactors, or because they have the money in their bank account, they can pay the lawyers to bring thousands of applications, challenge every decision. As is the case with Mr. Zuma, his absurd attempts to privately prosecute people so that it doesn’t go forward. Those prosecutions are absurd, but they are used not because we know that it is never going to end in trial and conviction, but because they prolong and delay the actual prosecution and prevent Mr Zuma from having his day in court and to give his side of the story.

Reason for some optimism: court-ordered lawyer to cover cost of delay

In the case of the public protector, there have been various applications throughout these two years brought by Busi Mkhwebane because she received funding to the tune of about R30 million from the public protector’s office. In the beginning, she seemed to have a blank check. So, she used all that money to bring the litigation.

The courts, even when prompted to do so, had not found in any of those cases that there was an abuse of process. It was only when the committee itself, seeing that they won’t be able to conclude it, that the [Stalingrad’ strategy is causing a delay and justice won’t be done, that they got a little bit stricter and said, well, we’re trying to help you to give you more funds because the funds then lead to litigation, but we’re only giving you R4 million. Then of course, Advocate Busi Mkhwebane said that R4 million is not enough, in the words of Advocate Mpofu, he said R10 million is peanuts… R4 million is peanuts, and they cannot lodge all these further challenges.

So, it is an administrative decision that ensured that this strategy didn’t work in Mkhwebane’s case. However, in the prosecution of President Ramaphosa, the so-called private prosecution by Mr. Zuma, the court did finally find that there was an abuse of process, that this whole private prosecution was a bizarre, absurd and unethical abuse of the legal process. Again, they didn’t order the lawyers to pay the cost personally, even when they considered granting leave to appeal and they found that the attorney and the advocate for Mr. Zuma had misled the court. They didn’t, as one would expect, refer it to the legal practice council. So, the tide is turning perhaps, and there is evidence in both the political and the less political cases that the courts are getting a little bit more strict. But it…maybe too optimistic to say that it has turned yet.

There has actually been a recent judgement of the Western Cape High Court, I think, where in another matter, nothing political, the court also found that the lawyers have actually facilitated the abuse of the legal process. They ordered the lawyers to pay personally for the costs. That has not happened in the highly charged political cases, because I think the courts as the legal professional body, the legal practice council, who has to oversee this are a bit scared, are a a little bit hesitant or apprehensive to take on lawyers and their clients who behind them have the support of a political party with substantial support and the ability to make a lot of trouble.

Overemphasis on procedure, under-emphasis of substance invites abuse by unscrupulous people

Well, one of the MPs in the debate on the removal of the public protectors mentioned a figure of R160 million, which would be for the lawyers, all the cost of flying people and so on. That is, of course, preposterous when considering that an ordinary person, whether poor or middle class, none of us can afford that kind of money or even the R34 million that the public protector got.

This situation raises broader questions about our legal system because it’s a system that is based on conflict. There have to be quite elaborate rules, procedural rules and protections. However, it allows and invites abuse by unscrupulous people. So, the overemphasis on procedures and under-emphasis on substance is a problem. We need the rules because we have this kind of adversarial system, which is difficult to have otherwise. But, I think there is an argument to be made about how we deal with procedures to ensure that they are fair because they have to be fair. They need to be slightly less technical so that people cannot bring all these arguments that have nothing to do with fairness. It’s just because there happens to be a rule designed for fairness which they then exploit and they’re going to lose but it is going to delay the procedure of the process for six months to a year.

Legal reforms face resistance due to impact on lawyers’ bottom line

It is a complicated matter and I would hope that the legal profession and academia should think about this and say, maybe this is what needs to be done. Ultimately, it is the responsibility of the Minister of Justice and the government and perhaps the Law Reform Commission to make proposals for such a reform. I don’t know if it’s politically possible because the legal profession is a very powerful lobby and if you change the rules it will affect the bottom line. Lawyers often take these really hopeless cases that are abusing the legal system in a way because it is very profitable to do so. So, I don’t want to cast aspersions on any specific lawyer, but it is clear money is important and if you simplify the procedural rules, it will affect the bottom line of many of the lawyers.

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Constitutional court could cost millions, rules of legality are pushed

It depends very much on whether you’re an attorney or if you’re a senior counsel or a more junior person. If you’re somebody that’s a senior council, you charge, of course, for all the work you put in, the things you read. If there are 500 pages, you have to read them. It’s maybe, I don’t know, maybe R10,000, R15,000, R20,000 a day just for appearing in court. If you have a court case with three, one senior counsel and two juniors and it goes to the constitutional court; It’s going to cost you a few million just for your lawyers. Unless it’s a simple case, but, it’s a huge amount of money. Of course, some lawyers don’t charge the full fee, but not all lawyers are like that. Billing must comply with the rules, but people who really want the money will push that rule to the edge of legality.

Parliament may have learnt the wrong lessons in getting rid of Mkhwebane

I think it’s the wrong lesson in the sense if they take from this that any such process needs to bend over backwards to facilitate all the whims of the person that is being investigated. That is the one thing. The lesson that I draw from that is that the rules of the National Assembly about removal need to be clearer to curtail the possibility that the lawyers and the client can abuse the system, limit the amount of funds available and so on. But, the other lesson that is a slightly different lesson, and that is a bit naughty maybe, I fear that the lesson they might have learned is that if you appoint somebody to do your bidding for you as the public protector or in any other office; the lesson you have to learn is that person shouldn’t be too incompetent and too dishonest. They need to be on your side, they need to fight and not be impartial and independent, but they need to have the basic skills, otherwise, they’re going to end up like Mkhwebane, whose reports have all been overturned by the courts. It’s a problem because in the end these bodies are headed by people that have been elected, selected by the National Assembly, MPs, and politicians. They are elected to act in their interest in a way. So, it’s always going to be tricky to get somebody appointed to any of these bodies who are actually fearlessly independent and impartial.

Payback state money if you lose? – Zuma didn’t

The problem with that is that people won’t pay back when they lose. The president, former president Zuma, unlawfully got the state to pay for many of these Stalingrad defences in his criminal case that happened long before he was president. The court ordered him two years ago to pay it back. Nothing has been paid back. So, there’s that problem. And also won’t, because of that. People will just say, we’ll bull [shit] our way out of that when the time comes. They will take the money and they will run with the Stalingrad defence. So, it would be better to create much tighter, stricter rules to say, this is what you’re entitled to, This is the kind of thing that you can do. These are the kinds of amounts. Otherwise, it will be abused, not only by Mr. Zuma and the likes of public officials and so on.