Former president Jacob Zuma. File photo: Jerome Delay/AFP
The average politically aware person in South Africa is all too familiar with the term “Stalingrad tactics”. It is a form of “lawfare” — the use of legal procedure by state actors to achieve strategic political objectives.
The name stems from the style of warfare adopted by the Soviet Union during World War II, which involved wearing down the German forces in a five-month war of attrition.
In South African media, “Stalingrad tactics” denotes an abusive form of lawfare — legal strategies employed by public officials to evade legal accountability for their incompetence or misconduct.
It involves “constantly raising unwarranted interlocutory points, mounting spurious defences, launching baseless counterclaims, and appealing against every adverse ruling, irrespective of the merits”, according to Hugh Corder and Cora Hoexter in their 2017 article ‘Lawfare’ In South Africa and Its Effects On the Judiciary, published in the African Journal of Legal Studies.
Zuma has delayed his criminal trial for 15 years using this tactic. It has been adopted by other public officials too, notably the Western Cape judge president, John Hlophe, found guilty of gross misconduct by the Judicial Service Commission, dating back to 2008.
It appears that the suspended public protector has adopted this strategy too. Busisiwe Mkhwebane has turned to litigation to stall the impeachment inquiry proceedings against her in parliament.
Stalingrad tactics also seem to be at play in extradition cases, whereby prominent figures have managed to avoid criminal accountability in endless procedural delays and complexities.
The credibility of the court largely depends on public perception of the legitimacy of its rulings. Public confidence is essentially the judiciary’s only means of enforcing its power. Stalingrad tactics, and the way in which they undermine the decisions and authority of the courts, court process, and the administration of justice, significantly threaten the rule of law and the justice system in general.
Possible ways to prevent the use of Stalingrad tactics range from big-picture systemic issues to more focused problem areas. The first suggestion deals with a deeper systemic issue, and the following two provide more immediate solutions.
Adversarial system
Constitutional law scholar Pierre de Vos has argued that the abuse of court processes through Stalingrad tactics is partly a consequence of South Africa’s adversarial legal system. This system exists in opposition to the inquisitorial legal system, which is the system used primarily in civil legal systems.
The fundamental difference between an adversarial and inquisitorial system is their assumption about the best means to establish the truth in a way regarded as fair. The adversarial system is party-driven while the inquisitorial system is judge-driven.
An adversarial system places its faith in the opposing parties to present their arguments properly and honestly within evidential and procedural boundaries, and through this factual “battle” the truth should ostensibly emerge.
An inquisitorial system places a far higher value on truth-finding by doing away with the battlefield of legal arguments. The search for the truth is placed in the hands of the impartial investigator, considering all relevant evidence with no restrictions on what is admissible. Legal counsel plays a far more minor role. In this way, “material” truth is the aim, rather than a “party-centred” truth.
The party-centred truth ultimately increases the probability of placing the outcome of the case in the hands of the stronger, smarter, and more highly paid lawyers.
Furthermore, by placing the conduct of the trial in the hands of the litigants, trials can be prolonged through delaying tactics. This has been evident in the use of Stalingrad strategies, which distract from the substance of a case in favour of procedural and formalistic legal arguments.
De Vos suggested that a more hybrid adversarial-inquisitorial legal system could prevent lawyers from using technical loophole arguments to protect their clients and distract from the actual substantive fairness of a hearing.
A hybrid system would entail that the judges play a more active role in the management of a trial, not being expected to subordinate the enforcement of legal norms to the wishes of counsel.
Judges should be able to play a more managerial role in condemning and resisting Stalingrad tactics that are evidently being used to delay accountability and undermine substantive justice and truth-finding. This should not negate the importance of fair process, but judges should have more discretion in refusing to entertain such delay tactics to see that substantive justice is done, despite the existence of various technical or formalistic legal arguments.
If judges were recognised for having a more inquisitorial role in trials, this type of judicial intervention would not be labelled as irregular or as an intrusion of judicial power into the political sphere. Although there is a constant tension between perceptions of bias and truth-finding, this tension should not preclude the court from performing its primary function of seeking substantive justice.
Stricter accountability
Another means of preventing Stalingrad tactics is to implement stricter accountability in the legal profession. The use of Stalingrad tactics by legal representatives is not in itself unlawful, but it could be said to contravene professional Codes of Conduct.
Although there is often a thin line between boldly defending one’s client’s interests in an adversarial system and using a thin veil of legality to obstruct the administration of justice, the regulatory bodies should stop being so circumspect in recognising and calling out audacious abuses of court process using Stalingrad methods.
For the rules in the Codes of Conduct to have any meaning, they need to be unreservedly and actively enforced by the relevant bodies, and firm penalties should be handed out in case of infringements.
Unfortunately, the Legal Practice Council is not known for its firm or fast disciplining of divergent members. The Legal Practice Council requires significant improvements to the efficiency and adequacy of its disciplinary measures against legal representatives employing Stalingrad tactics.
Costs orders
Stricter accountability in the legal profession can also be implemented by the courts through costs orders. In the cases of most egregious abuse of court process, a court can order punitive costs de bonis propriis (“of his own goods”) against the legal representative, who is then obliged to personally cover the costs of litigation. The court’s exercise of discretion must be guided by the dictates of fairness and justice in the particular circumstances.
This punitive costs order against legal representatives is only applied in exceptional circumstances. This is because legal representatives are ethically obliged to pursue their client’s rights and interests fearlessly and vigorously, without undue regard for their personal convenience.
But this duty may only occur within a certain set of ethical parameters — which include a duty not to mislead the court or weaponise legal procedure to obstruct the interests of justice.
This is where Stalingrad tactics can cross the ethical line.
Our courts have a history of applying the exceptional remedy of costs de bonis propriis against legal representatives who employed exploitative Stalingrad-esque tactics, dating back to the 1980s.
In Webb v Botha 1980, the high court ordered an attorney to pay the costs of all the parties to an appeal on a punitive scale, given that it was a “foregone conclusion” that his client’s appeal would not succeed, yet the attorney continued to brief the client and put forward highly technical arguments designed to delay the inevitable, and which had no substance. Essentially, the court punished the attorney for failing to advise the client to abandon the appeal.
More recently, the labour court ordered punitive costs against an attorney for persisting with a “meritless application” in a manner that did not indicate good faith.
Furthermore, the high court has confirmed that this costs order can be made against legal representatives on the highest scale for vexatious and arduous litigation, and an egregious abuse of court process.
This same reasoning would apply to the use of Stalingrad tactics when a client lacks a meritorious case. Arguably, the courts have not been using this costs order enough, given the extensive use of such tactics by public officials to avoid accountability.
This is an exceptional remedy, but these are exceptional times — the weaponisation of legal procedure to delay accountability is a considerable threat to the democratic principle of government accountability, responsiveness and openness that South African citizens are constitutionally promised.
It also undermines the rule of law, justice and equity, and public confidence in the legal profession and justice system.
It is high time that the courts make better use of these costs orders to vindicate the Constitution.
There is no easy or simple solution to the problem of Stalingrad tactics in South Africa’s constitutional democracy. But the three key areas highlighted here are worth considering as sites for intervention.
Helen Acton is a research intern at Good Governance Africa, a research and advocacy nonprofit organisation.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.