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The ABC of the Stalingrad defence

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In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

It is good and healthy when citizens and commentators take an interest in the law, particularly in a society where nothing much happens that doesn’t end up in the courts. Remember when they puzzled over dolus eventualis? These days, talk is of the ‘Stalingrad defence’.

The Stalingrad defence is not taught in law schools and it has a certain charm — its application needs only a passing knowledge of the law. Anyone is capable of advancing it with no legal training at all. All one needs is familiarity with a few procedural rules and a little imagination, if one finds oneself on the wrong side of the prosecuting authority. 

The first rule is that anybody can bring an application to a court once charged with an offence. And the first step is to think of a reason you should not be prosecuted. It need not be a good reason — any reason will do — because succeeding is not the point of the Stalingrad defence. The point is only to have an application before the court. 

Having conjured up a reason, the next step is to formulate an application. That is not difficult. A notice asking the court to stop the prosecution, an affidavit giving the reason, delivery of the application to the registrar and the prosecuting authority, and the Stalingrad defence has been set on its course. 

The application to stop the prosecution will probably fail, but that is not a problem, always bearing in mind that the Stalingrad defence is not about succeeding. Having lost, you will then ask the court to allow you to appeal. If that fails it is also not a problem. You will then apply to the Supreme Court of Appeal to allow an appeal. It is also no problem if that fails because you will then apply to the Constitutional Court to allow an appeal.

No matter if that also fails — by then you have gained a reprieve of as much as 12 months, and perhaps even more. You can gain at least another six months from other silly applications — like an application to the Supreme Court of Appeal to reverse its decision and, when that fails, an application to the Constitutional Court to reverse its decision, and so it can go on. By then, one ought to be up to 18 months or more.  

But here is the true beauty of the Stalingrad defence — after failure upon failure, it can be started all over again with a new reason why you should not be prosecuted. Round and around it can go in perpetual motion. 

But surely there is a flaw, and indeed there is. What has meanwhile happened to the prosecution? Why has it stalled? Once the application to stay the prosecution failed, why did the court not simply proceed? There is no good reason at all. It stalled only because the prosecutor and the judge allowed it to be stalled. 

Some might say that once an appeal has been asked for, the proceedings are automatically stayed as a matter of law, but they are wrong. The law stays an order that has been granted when there is an appeal. It does not stay proceedings when an order has been refused. 

It is true that an application to appeal might be granted by the Supreme Court of Appeal or the Constitutional Court, but still, that is not a bar to the prosecution proceeding. It might end up that an appeal succeeds and there is a mistrial, and the accused person is acquitted, but nothing has been lost. The position would be no different to what it would have been had the prosecution been disallowed. 

There are some who blame the lawyers for the Stalingrad defence. They say the lawyers are unethical and must be barred from advancing ridiculous cases, but they are wrong. The judges, not the lawyers, are in charge of what happens in the courts. They need not abdicate to shameless lawyers. They need only dismiss ridiculous cases and get on with their job.

Not once since the invention of the Stalingrad defence has an application to disallow a prosecution succeeded, neither in the first court nor on appeal. A little backbone on the part of the prosecuting authority and the judges, a little confidence of judges in the decisions they make, a little getting on with the job at hand, and that will be the end of the Stalingrad defence. In reality, it is no defence at all. DM 

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  • Karl Sittlinger says:

    While I accept that it’s the judges responsibility to ensure his/her court runs correctly, I do see moral issues with laywers that employ the Stalingrad tactic. After all, it is generally all about denying justice, which goes against the very spirit of having a justice system in the first place. Combine this with some of the ridiculous salaries top laywers earn, and it’s hard for me to see this as anything else but a combination of delayed and denied justice and a way to get rich.

    • Dennis Bailey says:

      Lawyers are amoral, it goes with the territory of defending the indefensible.

    • Dennis Bailey says:

      It seem oxymoronic to have a judge telling judges to judge with some backbone and is probably indicative of the shambles that is SA policing/ judiciary. The courts blame parliament when it’s the responsibility of the crooks who sit in parliament that ought to be acting on behalf of the people they represent and don’t.

  • Rae Earl says:

    Dali Mpofu is the epitome of Stalingrad tacticians. It’s the only thing he does well and he makes a fortune out of it in extended legal fees. The fact that he loses most of his cases is indicative of his legal ability and intelligence levels. Does he care? Not a chance> He’s making money and the judges and magistrates bend over backwards to make it easy for him, not to mention parliamentarians in the Mkhwebane fiasco which reportedly cost tax payers over R30 million in fees to Mpofu. He may not have high intelligence but he’s bloody clever.

    • jason du toit says:

      mpofu is an advocate, not an attorney. he does the representation in court after having been briefed by the attorney who has lodged the application. there is little chance it is him lodging these applications. attorney hires him and pays him.

      he is well aware of the almost zero chance of success, but he’s a mercenary who will do anything as long as he gets his dues. and he will do all he can to drag out proceedings (for $$$ reasons, as well as to further his politcal aims).

      • Kanu Sukha says:

        If Rae’s figures are correct … that is ‘peanuts’ apparently … coming from the person who pockets it ! You must have very big pockets for so many/much peanuts ! BUT when you have pocketed such numbers at SABC some time ago .. why stop now ? Just wonder if they declare it and pay taxes on their ‘peanuts’ ?

  • Johan Buys says:

    There is a way to stop these abuses.

    At present the lawyers claim “it is my instruction” as if they are not there to advise their clients. When the application fails, the clients pay the lawyer and they might get a cost order against them. So instead, when these stall tactics fail, the courts should award a punitive cost order against the LAWYER. For good measure also prohibit the lawyer from charging the client for the lawyer’s fees. So not only must the lawyer pay the state’s costs, the lawyer cannot if the application fails charge the client.

    Watch how quickly clients are advised against pursuing useless applications…

  • Carl Metelerkamp says:

    And that’s what they are sometimes called Shiesters, below from Wikipedia
    “Shyster (/ˈʃaɪstər/; also spelled schiester, scheister, etc.) is a slang word for someone who acts in a disreputable, unethical, or unscrupulous way, especially in the practice of law, sometimes also politics or economics.”

  • Craig King says:

    Everybody deserves the best legal representation they can afford. That representation is obliged to keep their paying client safe, whole and out of jail. It is irritating to see people we don’t like prolong their freedom using this technique but if it was you would it be right to deny you its protection? Of course if the investigating and prosecuting authorities did their job properly and brought forward water tight cases things would go quickly and efficiently but as I say we all deserve the best protection we can afford and making the investigators and prosecutors part of that protection in this environment makes perfect sense.

  • Richard Robinson says:

    Perhaps a bit more legal Blitzkreig is needed by presiding officers and our Chief Justice needs to the at the helm of that effort.

    • Kanu Sukha says:

      He’s not going to be there for long .. maybe a couple of months at most ! The replacement has already been confirmed by CR. His predecessor has gone into selling bibles .. much like Trump … who sells them but has never read it … let alone understand it !

  • Rod H MacLeod says:

    Thank you Prof B – never thought of it that way before. Great clarity of thinking. Prosecutors need to remind the distracted judges of this.

  • Titus Khoza says:

    Or if all fails, just start a new political party! Then you can threaten the judges and tell them that when one day in the not too distant future you become the president of the country their jobs and their pensions will be online.
    If still you don’t succeed, then it’s to call Dali Mpofu.
    How simple is that!

  • Dietmar Horn says:

    In 1974 I was stopped at a speed limit. A few weeks later I had to appear before the magistrate court in Wynberg. The indictment incorrectly stated the time of the traffic offense by an hour early. I was still at work at the time and could not have committed the “crime” as accused; I could have called witnesses for that. From a constitutional point of view, the charges would have to be dismissed because of a procedural error – I thought. Confident of victory, I pleaded not guilty when it was my turn. Had I used the “stalingrad tactic” without knowing the term? The magistrate interrupted the hearing. Hours later I was called again; the judge had investigated. He told me the exact time of the “crime” and sentenced me to 70 Rand (if I had pleaded guilty, I would probably have gotten away with 35), or alternatively three days in arrest. Now I didn’t have that much cash with me and payment by check wasn’t planned, so an officer took me to the “prisoner’s friend” office. But he just had his lunch break and so I ended up in a cell without further ado. Thirty minutes later the prisoner’s friend opened the door and sent me to the nearest bank branch with the warning to come back immediately or I would get into serious trouble. Would I have more success with “my Stalingrad tactics” fifty years later? Whatever the case, more rule of law also brings more opportunities for abuse. In addition to professional qualifications, the office of judge requires a high level of social competence and a sense of the right priorities.

  • Tshepang Moloi says:

    It is my view that despite the yoke of justices and prosecutors to sprune these applications, the buck stops with lawyers. Today’s lawyers (of course few in the pack) exude, in most probabilities, unethical practices of ill advising their clients in the best interest of generating income for themselves. Gone are the days wherein lawyers will, on the basis of bonefide, transparency and courtesy, represent the clients in the best interest of justice. Due to these “malpractices” Stalingrad defence will eternally reign supreme.

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