By Anton Katz
In every single court case time is a key component of fairness.
One or more of the litigants would prefer the case to be heard and finalised as soon as possible; while their opponents would be satisfied were the case to never be heard, and if it is, many years in the future. So, in a commercial case the claimant wishes his claim to be heard quickly, so he or she can receive his claimed money; while the opposition or defence hope the case is never heard, and he or she would not have to pay the claimant a cent. In a criminal matter, when the accused is on bail he or she would hope the actual trial never happens or happens years into the future when the memory of witnesses diminishes and evidence may have disappeared by witnesses going missing or even dying. But the prosecution would wish for the trial to begin as soon as possible. If the accused is in custody and not on bail, he or she would wish the trial to commence soonest.
There is a legitimate concern in South Africa and many parts of the world that the court system is slow and cumbersome. Persons who may have a good case may decide not to pursue their case because of a perception, and often a correct one, that the matter would take too long to be finalised. And the length of cases is extended by the numerous possibilities of appeals.
In Pirkei Avot, a compilation of the ethical teachings and maxims from Rabbinic Jewish tradition, it is said: “Our Rabbis taught: …The sword comes into the world, because of justice delayed and justice denied…” And Martin Luther King, Jr. famously refrained: “the arc of the moral universe is long, but it bends toward justice.” President Barack Obama loved and popularised the quote, and had it woven into a rug in the Oval Office. If the arc of the moral universe will inevitably bend toward justice, then there is no reason for humans to strive toward that justice, because its going to happen anyway. It would be only a matter of cosmic influence, and no human role is needed. But that isn’t what Reverend King meant. Humans need to work, endeavour and fight hard for justice, and hopefully, more often than not, it will eventually be delivered.
In South Africa delaying tactics in court proceedings have become known as the Stalingrad strategy. This is a tactic of wearing down the plaintiff or prosecution by vigorously fighting anything the plaintiff or prosecution presents by whatever means possible and appealing every adverse ruling to the nth degree. The accused or defendant avoids the merits of the case; but rather takes point after point after point. Former President Jacob Zuma has a reputation of using the Stalingrad strategy of deploying every possible legal device to prevent his prosecution arising from alleged corruption in the arms deal from proceeding. His advocate has said in court: “This is not a battle where you send a champion out and have a little fight and that’s it – this is more like we will fight them in every room, in every street, in every house.”
This strategy is named after the Russian city besieged by the Germans in World War II. In broad terms a Stalingrad defense is a dogged inch by inch defense of attrition. The Russians defended Stalingrad against the Nazi war machine street by street and house by house. The term has acquired a negative connotation in the context of court proceedings. It suggests that the defendant does not have a solid defence, but is merely seeking to delay his inevitable loss. The first recorded use by a court of the term “Stalingrad Defense” is in a 1981 judgment in the North District of Illinois: “The corresponding Stalingrad defense by defendants (intended to exhaust the opposition and their more limited resources, in turn leading to acceptance of a modest settlement offer). …” The judgment discusses the historical background of the Stalingrad defence: “This is a case where there was no real defense so the attorneys for the Defendant had no choice but to fight every inch of the way. Objections, motions, and obfuscation, was the defense. It was the only defense possible. Truth was the enemy. Stalingrad was saved by the Russians in World War II by literally wearing out the Germans, and this type of defence by lawyers in the last century came to be known as the Stalingrad defense. Wear the opponents out. Fight for every step. However, the plaintiff’s attorneys brought every possible action under multiple state law and under federal law that could possibly apply and the battle became irreconcilable. Thus, rancour and accusations became the byword. This is not to indicate that the attorneys defending or prosecuting the case violated any rules of ethical conduct. However, fighting on ridiculous matters became paramount. This in turn caused undue rancour. Argumentum ad hominum became the key and flavoured the entire case and continues to do so.”
A key to this strategy is money. Those without the luxury of a war chest of funds will not be able to effectively mount such a strategy. In so many cases, the courts have expressed their frustration with these tactics.
But on the other hand, procedural fairness is also imperative. Fairness in court cases demands that parties and their legal representatives have enough time properly to prepare for the case. For example, the discovery of documentation often takes time. In many cases, disputes about documents before the case even starts takes months to resolve. And then there is the lengthy court roll. It takes sometimes more than a year before being able to obtain a court date for a hearing in certain busy divisions. Most Judges and Magistrates have huge work loads with thousands of pages of reading before a case. In order to do justice to a case the judicial officer requires time. Time to read and let the facts and the law percolate. Having heard the arguments it can take time for a judge to deliver a fair judgment. The Chief Justice has indicated that judgments should be delivered within three months after argument. Some judges deliver within three months, but others can take longer. I’ve known cases where the judge has taken two years to produce a fifteen-page judgment. There are an ever-increasing number of cases of all types, from shipping cases, building disputes, conflicts in sports, labour issues and family law disputes. The demands of the courts are considerable. To appoint more judges to ease the work-load is expensive. And more support court staff (stenographers, ushers, typists, interpreters and others), court equipment, court rooms and buildings would be required.
There can be no doubt that justice is expensive. And part of justice is the timeous resolution of disputes. A decent society requires justice. The provision of justice is just like the other demands on government. Medical care, education, policing and security, housing and a clean environment are only some of the costly demands. An oft-repeated complaint is that well heeled parties can ‘buy’ justice. To the extent that there may be some validity to the complaint it must never be forgotten that justice is an indispensable public commodity, not dissimilar to many others.
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