Imagine the scene. It is shortly before the Supreme Court of Appeal (SCA) is to hear the appeal brought by then-president Jacob Zuma in the so-called “spy tapes” case. The high court had reinstated charges against Zuma, who presumably had been advised to appeal the order. His legal team has prepared for the appeal, filed the necessary written argument and is about to descend on Bloemfontein for the hearing.
They suddenly change tactics. They consult their client and inform him that the prospects of succeeding on appeal are zero. He looks stunned. “Does that mean,” he asks, “that I will finally have to answer to these charges in a criminal court?”
“No,” they say, “not at all. We are going to allow national director of public prosecutions Shaun Abrahams to make a decision about whether to charge you. We, of course will hurl files of paper at his door, all designed to represent your case that no prosecution should be reinstituted. In the highly unlikely event that Shaun acts contrary to his excellent record to date and reinstates the charges, we can approach the high court to review his failure to accede to the representations. And if the high court dismisses this application, we can keep going on appeal to the SCA and if necessary to the Constitutional Court. This strategy, even if ultimately it is legally unsuccessful, can buy you another three to four years.”
Now this scenario is pure speculation by this columnist, though it is lent support by reports citing Zuma’s lawyer, Michael Hulley, to the effect that a review of the decision to recharge Zuma is being considered. A number of implications for the legal system and its profession arise from this continuation of what Zuma’s lawyers once referred to as the “Stalingrad defence”, referring to the way, in World War II, that the Russians fought the German advance into Stalingrad block by block and street by street.
In the first place, there is an argument that the taxpayer should not have to pay millions of rands to fund this strategy. Even if it can be argued that Zuma should be funded by the taxpayer to mount the best legal defence at his criminal trial, this privilege should not be extended to the countless review applications that have and may still be brought to prevent the criminal trial from proceeding.
Second, when Zuma’s lawyers threw in the legal towel in the SCA’s courtroom when abandoning the spy tapes appeal, the court could have ordered the legal representatives to pay the successful parties’ costs personally — and on a punitive scale. After all, the litigants were required to prepare their opposition to the appeal and travel to Bloemfontein.
If, as was legally obvious, there were no prospects of success on appeal, when did Zuma’s lawyers finally work out that the appeal could not succeed? If the decision to abandon the appeal at the last minute was part of a strategy of delay, then the court, after affording Zuma’s lawyers an opportunity to explain themselves, could have made a punitive costs order.
That principle should be applied to review proceedings in the trial ahead. As Abrahams made clear in his announcement that the charges were to be reinstated, it is for the trial judge to decide on the question of whether Zuma can be given a fair trial.
This principle is surely a settled principle of law, as appeal court Justice Louis Harms made clear in his judgment in 2009 when he reversed the unfortunate judgment of Judge Chris Nicholson and reinstated the National Prosecuting Authority’s indictment of Zuma.
If Zuma seeks to review Abrahams’ decision, and the court finds that there is no legal merit in such a challenge, it should consider ordering that the Zuma lawyers pay the costs of the opposing parties on a punitive scale.
Members of the legal profession are obviously obliged to represent their clients to the best of their ability, but they also owe a fiduciary duty to the legal system of which they are an important part as officers of the court. Hence they do not have free rein to engage in the abuse of process or strategies that are at war with the very core of a legal system.
The issue of the ethical boundaries of lawyers has been highlighted by way of the numerous pieces of litigation launched by the Guptas, as well as in the legal inquiries into allegedly recalcitrant public officials and bodies. It is high time that both the Bar and the Law Society of South Africa revisit the principles of what constitutes proper, ethical conduct by its members.
Failure to do so will undermine the legal system in the eyes of the public, who surely will adopt an increasingly cynical view of a system that can be manipulated to protect those who can afford an army of high-charging lawyers to lodge endless appeals, whereas the poor are sent to prison without even a modicum of decent legal representation.