/ 26 May 2022

The problem with Stalingrad is the cost, not the law

The tragedy is that few of us could afford to brief fine lawyers to fight all the way to the highest courts, but we are all paying for what is playing out on stage. (Photo credit should read SIPHIWE SIBEKO/AFP via Getty Images)

For a while now, the courts have been the best theatre in town. They are full of political actors who wronged us and nobody wants to go to prison, be impeached or part with ill-gotten millions. 

The motives for launching inventive litigation to avoid that reckoning are mostly relatable. The absurdity of asking for rescission of refusal to rescind, and the inference that constitutional court orders are not final after all, makes it harder to suspend disbelief.

But it’s the frequent success of this approach that leaves the public asking, like Chief Justice Raymond Zondo in another context but with the same incredulity: “How can it be?” 

Stalingrad would not be in our lexicon if it did not work.

It would be wrong to rail at the courts though. Last week, Judge Piet Koen and advocate Billy Downer resigned themselves to the fact that Jacob Zuma’s corruption trial will not start this month and will certainly not conclude this year. 

Koen had to concede advocate Dali Mpofu’s point that the law obliged him to postpone the case pending a decision from the appellate court. This is on Zuma’s application for reconsideration of the refusal to allow him leave to appeal the dismissal of his shopworn plea that Downer lacked standing to prosecute him.

This week, the constitutional court heard argument from Ledla Structural Development and its directors that the Special Tribunal was not empowered to set aside their scandalous contract with the Gauteng health department to supply Covid-19 personal protective equipment.

It would then follow that the order that they forfeit R38-million to the state, falls away. The high court and the appellate court have refused to entertain an appeal.  

Counsel for the Special Investigating Unit said so should the apex court, because it was not in the interest of justice to allow a challenge to the status and rules of the tribunal that was really about greed.

Advocate Tembeka Ngcukaitobi, for Ledla, raised compelling arguments about the political locus of the tribunal’s powers. We should know the court’s view in roughly six months. In the interim, the case will cloud hopes of recovering a fortune lost on dodgy Covid-19 procurement.

According to Ngcukaitobi, concerns over the implications if the rules were to be found unconstitutional were over-wrought because parliament could rewrite these in a day. With respect, parliament does nothing in a day.

He admitted to finding his client’s profiteering unsettling, but reached for S v Makwanyane  — where the court abolished the death penalty — to plead that the law must protect the worst among us.

That much is trite. The tragedy is that few of us could afford to brief fine lawyers to fight all the way to the highest courts, but we are all paying for what is playing out on stage. 

Steven Budlender SC put it on record in the high court where public protector Busisiwe Mkhwebane is trying to avert suspension when he recalled how someone in a similar bother was asked why he did not wait until after the fact to contest it.

“Are you mad? Then I would have to pay,” came the reply.