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After a battle of about 4 years to safe the elimination of South Africa’s public protector, Advocate Busisiwe Mkhwebane, the nation’s parliament lastly delivered the coup de grace in early September. Parliamentarians voted to question her only a month earlier than her time period was because of finish. President Cyril Ramaphosa subsequently eliminated her from workplace.
A few of the public protector’s troubles landed up in courtroom, with quite a few judgments going in opposition to her.
However why did it take so lengthy? And what classes could be learnt from the drawn-out course of that sapped sources (monetary and different) and left a key establishment, the Workplace of the Public Protector, unable to completely train its duties as a constitutionally established establishment to guard democracy? The workplace has the facility to analyze, report on and treatment improper conduct in all state affairs.
The rationale it took so lengthy is that Mkhwebane used a method that’s known as the Stalingrad defence. This includes carrying down the plaintiff by tenaciously preventing something by no matter means potential and interesting each judgment made. The strategy is called after the town within the then Soviet Union which was besieged by the Germans within the second world struggle. The Soviet forces held off the Germans for 5 months. Though this was achieved at nice human price, it purchased Moscow time.
The general public protector isn’t the primary to have turned to this tactic to chase away the authorized – or different – penalties of their actions. The opposite excessive profile instance in South Africa is the previous president Jacob Zuma’s 19-year battle to keep away from a case being heard round allegations of bribery.
How can this technique of vexatious litigation be allowed to proceed unabated? Who must be held accountable for this waste of cash, sources and time? It isn’t solely, in these situations, the previous president and former public protector who’re guilty. They have been aided and abetted of their abuse of the regulation by contentious attorneys, over-cautious parliamentarians and judges missing braveness.
A public outcry ensued when a member of parliament claimed that the prices of all of the hopeless or ineffective authorized challenges by the advocate to stop her elimination amounted to R160 million (virtually US$8.5 million) in complete. How can issues be allowed to escalate to this extent?
Drawing on my virtually three a long time of authorized expertise, I’ve recognized 5 potential methods to scale back the possibilities of wealthy and highly effective folks abusing the courtroom system and squandering precious sources.
The gamers
Former Constitutional Courtroom Justice Edwin Cameron just lately recognized 4 events who’re guilty: unscrupulous shoppers and attorneys, the skilled affiliation now known as the Authorized Observe Council, and lastly judges themselves.
I agree that every of those teams has one thing to reply for.
Unscrupulous shoppers: Highly effective politicians present no concern about dipping into the general public coffers to pay for the authorized video games they play. Whereas the structure protects the correct to be defended in part 34, the precept and worth of equality underneath and earlier than the regulation is as essential. However I might argue that those that have the backing of the state have a large benefit over abnormal residents.
Unscrupulous attorneys: There have been quite a few situations of attorneys utilizing delaying techniques and flouting courtroom procedures.
The Authorized Observe Council: Choose Cameron acknowledged that
it has displayed lax oversight and isn’t asking for explanations as to why attorneys are adopting these delaying practices.
No excessive profile motion has been taken in opposition to attorneys who facilitate vexatious litigation.
The judges: That is in all probability probably the most contentious declare. But there have been situations when a choose has seemed to be blind to the truth that sure techniques have been getting used cynically.
In my opinion this might be as a result of unprecedented assaults on the judiciary lately are paying off. They’re resulting in over-cautious and overly deferent judgments that err on the aspect of the opposite branches of presidency in what’s a transparent misunderstanding of the precept of separation of powers.
What must be performed
Whereas defending the rights of the litigants, it’s additionally essential to rein within the abuse.
This may be performed in a number of methods.
Firstly, the State Lawyer ought to decide tips for what’s – or shouldn’t be – permissible and what the state will – and won’t – fund.
Secondly, as a part of these tips the State Lawyer might refuse to fund any authorized prices in a matter the place the courtroom has awarded prices in opposition to the general public official who’s litigating. Such a ruling by a courtroom follows when the courtroom has decided that the litigation was so clearly with out sound foundation in truth or in regulation that it should be characterised as “abuse of courtroom course of” and and even “vexatious”.
A value order by a courtroom typically requires the offending litigant to pay a comparatively minor proportion of the prices. A extra forceful measure can be for the State Lawyer to refuse to pay all or a part of the steadiness of the associated fee order the place the offending litigant is a public official and has been discovered to have abused the courtroom and its processes.
Thirdly, punitive price orders might be utilized by the courts to make litigants really feel the monetary burden of their misuse of the authorized system. If a courtroom needs to point out its displeasure a couple of defendant’s conduct throughout a trial, it might order the defendant to pay legal professional and shopper prices, that are punitive.
Fourthly, measures might be taken to guard journalists and human rights defenders in opposition to SLAPP instances. SLAPP fits (strategic litigation in opposition to public participation) are utilized by rich litigants and their authorized groups to financially and emotionally exhaust opponents, whatever the deserves of their trigger. In July, the European Parliament adopted a spread of measures to guard journalists and human rights defenders in opposition to such instances.
Fifth, there’s the opportunity of imposing private price orders in opposition to authorized representatives to penalise their errant behaviour.
Courts have awarded these orders for gross negligence or intentional misconduct on the a part of authorized practitioners together with abuse of course of and the dilatory and obstructive conduct of authorized practitioners. Examples of intentional conduct which have been sanctioned contains conduct that ends in an abuse of course of, litigating recklessly, deceptive the courtroom, dilatory techniques, pursuing a hopeless case, and frivolous and vexatious litigation.
Legal responsibility for punitive price orders in opposition to vexatious litigants or prices out of authorized practitioners’ pockets would certainly make them assume twice earlier than utilizing Stalingrad methods and malicious SLAPP fits.
Advocate Gary Pienaar, senior analysis supervisor within the Developmental, Succesful and Moral State analysis division on the HSRC, contributed to this text.
