Justice Edwin Cameron is unquestionably one of the very finest judges produced in South Africa. His is a voice of legal clarity and moral authority. Thus, when he recently analysed the reasons for the inability of the South African legal system to respond to the so-called Stalingrad legal strategy, designed to prevent the final resolution of important litigation, his contribution to a debate that goes to the very legitimacy of the legal system needs an urgent response.
In a radio interview following the publication of his article on this topic in De Rebus, Justice Cameron suggested that four parties were responsible for the success of the Stalingrad strategy:
- Unscrupulous clients and lawyers;
- The professional association now called the Legal Practice Council; and
- Judges themselves.
Clients desperately wishing to avoid the consequences of an adverse judgment, whether imprisonment, a civil claim or an adverse finding against the conduct of a public official find lawyers who will argue any tendentious point, no matter that a first-year law student would take a nanosecond to conclude that there was no legal basis for the argument.
The idea is very much based on the story of the Persian philosopher Mullah Nasruddin. Sentenced to death by the sultan of Baghdad, he offered to train the sultan’s horse to speak within a year. Asked by friends as to the purpose of the offer, Nasrudin said a lot can change in a year – the sultan could die, I could die, there could be a palace coup or, who knows, maybe the horse will learn to talk.
Desperate clients, with public money, allegedly stolen money or by way of benefactors, find lawyers who hold to a similar philosophy and thus can, properly managed, ensure through the exploitation of a myriad interlocutory applications and then appeals from the high court finally to the Constitutional Court, that years may pass without a definitive legal outcome. The government may change, the prosecution service may be headed again by a Shaun, the successful litigant may finally consider the cost to be prohibitive and, who knows, a favourable judgment may be procured at some level, which results in further appeals.
For this reason, Justice Cameron raised the role of the Legal Practice Council, which at best is somnambulant when confronted with a serious complaint against a legal practitioner, or at worst, will not touch a case where the Stalingrad strategy is employed. The contrast to the US in this connection is truly disturbing. For example, a federal judge in Michigan has been hearing a disciplinary case brought against Trump lawyers Sidney Powell and Rudi Giuliani, closely questioning them on any possible legal justification for claims set out in papers prepared by them in support of Donald Trump’s attempt to overturn the 2020 election result. It is a serious stretch to envisage that the Legal Practice Council would ever launch similar proceedings, notwithstanding that there is now a deluge of cases that are no more than an assault on the core of our legal system.
Justice Cameron also noted that on occasion the judiciary has not acted firmly enough to deter this strategy. The recent application for rescission of the order of the Constitutional Court is a fine example of the problem. The court is now considering this application and it is wise to refrain from comment until the judgment is delivered. In short, the application may well turn on the particular facts of the case. But the wider implications of a broad right to apply for rescission even from the highest court in the country emerges with the news that the Public Protector is to make a similar application, notwithstanding the truly damning judgment delivered by Justice Chris Jafta against her.
So we now may have a system where a party who loses, and not even by a close margin, seeks, in effect, a further appeal to the very same highest court, albeit dressed up as a rescission application. This disturbing possibility needs to be considered together with the relative ease that appeals are heard, in itself fuelling perhaps not Stalingrad but the trench warfare of World War 1.
There is another component of the system that can be added to the Cameron list – the Judicial Service Commission (JSC), the only consistency of whose conduct has been the extraordinarily gifted lawyers that have not been appointed either to the high court or appellate courts. The Orwellian conduct of the last hearing of the JSC has had a profound consequence – there are no applicants for the Constitutional Court other than seven of the eight who applied last time. It is understandable that these applicants would reapply in that no appointments have been made in respect of the two vacancies that were the subject of the April hearings, owing to the application brought by Casac to set aside that hearing. But with the obvious exception of a few of those applicants, it is truly difficult to argue that this complete list represents the very best judges who sit on the Bench of South African courts. And now, no other judge has bothered to apply, notwithstanding the considerable ability and experience of many. It is a damning reflection that at this crucial time for constitutional democracy in this country, the cupboard is only filled by the same list.
The upshot is that the key institutions – the Legal Practice Council, the judiciary and the JSC – all need to rise to the challenge, because – notwithstanding the almost ritual incantation of the progressive nature of the Constitution and the resilience of judicial independence – the legitimacy of our legal system and the rule of law are now under more question than at any other time since the dawn of democracy. DM