John Matisonn: Dali Mpofu and the judiciary – who’ll stop Stalingrad?

Amid rising concerns over "Stalingrad tactics" obstructing justice in South Africa, a recent Appeal Court ruling has shed light on accountability for corruption, particularly among high-ranking officials. The judgement criticized the legal system for permitting baseless cases to proceed, highlighting the need for reforms in appeal processes. With public dissatisfaction growing over the lack of accountability, calls for action have intensified, urging courts and legal bodies to tackle frivolous litigation effectively..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here..By John Matisonn.There is a new spotlight on curbing the Stalingrad tactics that have delayed justice for key figures behind State Capture and clogged up the courts, but there is disagreement about who must act — the courts, parliament, the law societies or the chief justice? .___STEADY_PAYWALL___.There is widespread dissatisfaction in the public and the media that so few senior political figures and others have been held accountable for corruption, even after extensive investigative journalism and the Zondo Commission's comprehensive report on corruption..By contrast, lawyers representing former US President Donald Trump accused of bringing questionable cases after he lost the 2020 election have faced a variety of disciplinary actions, including disbarment. .A milestone Appeal Court judgement last week weighed in on how to stop Stalingrad tactics in South Africa, criticizing both lawyers and the lower courts for allowing cases with no chance of success to proceed. But Judge Piet Koen, at his Judicial Service Commission hearing this week blamed the rules allowing multiple appeals to different courts. .In a unanimous decision of five appeal court justices, Justice Visvanathan Ponnan bewailed the "veritable avalanche of legal challenges" that followed the impeachment of former public protector Busisiwe Mkwebane by the National Assembly. .His judgement questioned the wisdom of a high court decision to allow the latest appeal as well as her legal representatives, ruling that the application was defective because it was brought by the public protector's office when her term had expired, and because she was out of office the appeal had no purpose. .These facts should have led the high court to "pause" and to have focused "the attention of her legal representatives on their continued authority to at in the matter," the judgement said. Mkwebane's legal team was headed by Dali Mpofu, SC..Ponnan also pointed out that as a former public protector, Mwebane herself was "not an indigent or bewildered litigant adrift in a sea of litigious uncertainty.".Read more: Leaked recordings expose corruption in South Africa's higher education leadership.The judgement questioned counsel's failure to address the points that were decisive in striking the case off the roll.."None of the points that have been held to be decisive were even alluded to in the heads of argument…the attorney had not been validly authorized, there was no proper appellant…. Those issues were ignored." .Counsel "seemed not to be sufficiently well-versed with the relevant authorities, was of no assistance to the court… those who practice in this court are expected to have more than just a nodding acquaintance with the relevant rule… and .. the established jurisprudence of this court… ."…Had counsel stepped back apace or had Ms Mkwebane taken advice from a disinterested member of the bar, schooled in appellate practice, she would have been advised not to pursue this appeal, which self-evidently was dead on arrival..In his most cutting remarks, on behavior in the court, he wrote:."Brevity is the hallmark of good advocacy… Exasperated sighs, soapbox oratory, empty rhetoric, political posturing, theatrical gestures and long-winded, dismissive non-sequiturs have no place in a courtroom, particularly in response to searching questions from the bench. ."Inasmuch as there is neither an appeal properly before this court, nor an appellant to prosecute it, the matter falls to be struck from the roll. The regret is that unmeritorious appeals such as this impact not just the immediate parties and the court…. but also other litigants whose matters are truly deserving of the attention of this court. Those litigants have to wait in line whilst we process frivolous appeals such as this.".In his JSC hearing this week, KwaZulu-Natal Judge Piet Koen, who once presided over Jacob Zuma's arms deal-related corruption trial, says the only way to deal with "Stalingrad" tactics is to reduce the number of appeals available to a disgruntled accused..Koen was interviewed on Monday by the Judicial Service Commission (JSC) for one of three vacancies at the Supreme Court of Appeal, and the JSC has recommended to the president that he be appointed.."The primary problem is the availability of appeals. And as long as there is a right to appeal, it's difficult to shut the door unless you can show that it's mala fide and an abuse of process — and that is not something that a court should lightly conclude," he said..He said an appeal from a regional court could come before 18 judges through six or seven appeal stages, all with delays. "Our law permits a number of appeals. Perhaps the law commission might look at limiting the number of stages that are available.".In the US high-profile lawyers representing Trump after he lost re-election in November 2020 have faced disbarment and other severe sanctions, mostly imposed by courts..Trump's lawyer, former New York mayor Rudy Giuliani, was disbarred in Washington DC by a court of appeals after he was disbarred in his home state, New York..Other Trump lawyers have faced severe sanctions besides being criminally charged. Jenna Ellis was suspended from practice for three years and sanctioned for violating rules barring attorneys from engaging in "dishonesty, fraud deceit of misrepresentation.".A judge recommended John Eastman, who proposed an independent slate of electors be chosen to support Trump, be disbarred and fined $10,000, which Eastman intends to appeal..A DC disciplinary panel ruled in August that Jeffrey Clark, who was in line for a last minute appointment as Trump's Attorney General, should be suspended from practicing law for two years. .Another Trump lawyer, Alina Habba, was sanctioned multiple times in court and ordered to pay $50,000 in sanctions and later, with Trump, $1million. .Ethical complaints against others are pending, while some were ordered to undergo legal education and referred to their bar associations for potential discipline..Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution (CASAC) wants the judiciary "to take a stronger stance against litigation with no prospect of success, both to protect the rule of law and the clogging of the courts.".Naidoo said the best way was for the chief justice to take this up with the heads of courts, and agree to deny applications for leave to appeal that are groundless. .Naidoo also commented on the gap in the self-regulation by the profession. In the past the General Council of the Bar was the main enforcer, but there has been little enforcement lately..The Legal Practice Council (LPC), which includes to attorneys and advocates, has not been active for the sensitive role of disciplining lawyers who are public figures. .The LPC's code of conduct says that "a legal practitioner shall not abuse or permit abuse of the process of court or tribunal, and shall act in a manner that shall promote and advance efficacy of the legal process.."A legal practitioner shall not deliberately protract the duration of a case before a court or tribunal.".Read also:.'Zondo at Your Fingertips': Paul Holden's new book provides a condensed summary of the 4750 page Zondo commission reportPaul O'Sullivan: The Zondo Commission missed the markPaul Hoffman runs the rule through the State Capture Commission part 1 – controversial business breakfasts, SAA and SARS

John Matisonn: Dali Mpofu and the judiciary – who’ll stop Stalingrad?

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