Reining in Stalingrad tactic
It is remarkable that at present two former presidents, one in the US and one in SA, both facing serious criminal charges, are using the tactics of low-life criminals to wage lawfare against the prosecution services in both countries.
In 2007, Jacob Zuma’s late lead counsel, Kemp J Kemp, explained in open court, lest there be any doubt about the stratagem, that he was using an approach to defend Zuma against corruption charges “... like Stalingrad ... burning house to burning house”.
His approach is designed to prevent the case against Zuma ever being aired in court on its merits. Given that Schabir Shaik was convicted for corrupting Zuma in 2005 and the trial is not scheduled to begin before 2025, the strategy has been most successful thus far.
The permissibility of the strategy in law is questionable. All accused persons charged criminally are entitled under section 35 of the bill of rights to a fair trial that is supposed to “begin and conclude without unreasonable delay”. Zuma, having twice sworn his presidential fealty to the rule of law and the constitution, is obliged to respect this requirement, as is the state.
Zuma has not done so for nearly 20 years. Furthermore, his legal team has a professional ethical obligation to the court to perform its mandate within the parameters of the law and the constitution.
It is questionable that this has been the case. Lawyers owe solemn duties to the courts, as well as to their clients. The rule of law is trifled with when these duties are ignored.
A possible cure to the problem is to put a robust case management system in place that either obviates or minimises delays between hearings. The case manager has to ensure that the “Stalingrad” case is given priority on the roll for hearing, that appeals and other interlocutory matters relating to it are accorded precedence and that all lawyers in the case are kept on a rein far tighter than that used when Zuma’s counsel abused the time limits put on him by the Constitutional Court in the Electoral Commission of SA (IEC) appeal concerning the Zuma eligibility for parliamentary candidacy.
When proper case management measures are put in place, the uselessness of short delays and the pain of adverse costs awards for attempting to engineer them combine to foster the proper administration of justice. Recalcitrant lawyers must be disciplined. It is a matter of the courts taking a strong and focused stance against wasteful delays that serve only to undermine the rule of law. Justice delayed is justice denied.
Paul Hoffman
Institute for Accountability in Southern Africa