After a battle of about four years to secure the removal of South Africa’s public protector, Advocate Busisiwe Mkhwebane, the country’s parliament finally delivered the coup de grace in early September. Parliamentarians voted to impeach her just a month before her term was due to end. President Cyril Ramaphosa subsequently removed her from office.
But why did it take so long? And what lessons can be learnt from the drawn-out process that sapped resources (financial and other) and left a key institution, the Office of the Public Protector, unable to thoroughly exercise its duties as a constitutionally established institution to protect democracy? The office has the power to investigate, report on and remedy improper conduct in all state affairs.
The reason it took so long is that Mkhwebane used a strategy that’s referred to as the Stalingrad defence. This involves wearing down the plaintiff by tenaciously fighting anything by whatever means possible and appealing every judgment made. The approach is named after the city in the then Soviet Union which was besieged by the Germans in the second world war. The Soviet forces held off the Germans for five months. Although this was achieved at great human cost, it bought Moscow time.
The public protector isn’t the first to have turned to this tactic to ward off the legal – or other – consequences of their actions. The other high profile example in South Africa is the former president Jacob Zuma’s 19-year battle to avoid a case being heard around allegations of bribery.
How can this strategy of vexatious litigation be allowed to continue unabated? Who should be held accountable for this waste of money, resources and time? It is not only, in these instances, the former president and former public protector who are to blame. They were aided and abetted in their abuse of the law by contentious lawyers, over-cautious parliamentarians and judges lacking courage.
A public outcry ensued when a member of parliament claimed that the costs of all the hopeless or useless legal challenges by the advocate to prevent her removal amounted to R160 million (almost US$8.5 million) in total. How can things be allowed to escalate to this extent?
Drawing on my almost three decades of legal experience, I have identified five possible ways to reduce the chances of rich and powerful people abusing the court system and wasting precious resources.
Former Constitutional Court Justice Edwin Cameron recently identified four parties who are to blame: unscrupulous clients and lawyers, the professional association now called the Legal Practice Council, and lastly judges themselves.
I agree that each of these groups has something to answer for.
Unscrupulous clients: Powerful politicians show no concern about dipping into the public coffers to pay for the legal games they play. While the constitution protects the right to be defended in section 34, the principle and value of equality under and before the law is as important. But I would argue that those who have the backing of the state have a massive advantage over ordinary citizens.
Unscrupulous lawyers: There have been numerous instances of lawyers using delaying tactics and flouting court procedures.
it has displayed lax oversight and is not asking for explanations as to why lawyers are adopting these delaying practices.
No high profile action has been taken against lawyers who facilitate vexatious litigation.
The judges: This is probably the most contentious claim. Yet there have been instances when a judge has appeared to be blind to the fact that certain tactics were being used cynically.
In my view this could be because unprecedented attacks on the judiciary in recent years are paying off. They are leading to over-cautious and overly deferent judgments that err on the side of the other branches of government in what is a clear misunderstanding of the principle of separation of powers.
What needs to be done
While protecting the rights of the litigants, it’s also necessary to rein in the abuse.
This can be done in several ways.
Firstly, the State Attorney should determine guidelines for what is – or is not – permissible and what the state will – and will not – fund.
Secondly, as part of these guidelines the State Attorney may refuse to fund any legal costs in a matter where the court has awarded costs against the public official who is litigating. Such a ruling by a court follows when the court has determined that the litigation was so obviously without sound basis in fact or in law that it must be characterised as “abuse of court process” and or even “vexatious”.
A cost order by a court generally requires the offending litigant to pay a relatively minor percentage of the costs. A more forceful measure would be for the State Attorney to refuse to pay all or part of the balance of the cost order where the offending litigant is a public official and has been found to have abused the court and its processes.
Thirdly, punitive cost orders could be used by the courts to make litigants feel the financial burden of their misuse of the legal system. If a court wants to show its displeasure about a defendant’s conduct during a trial, it may order the defendant to pay attorney and client costs, which are punitive.
Fourthly, measures could be taken to protect journalists and human rights defenders against SLAPP cases. SLAPP suits (strategic litigation against public participation) are used by wealthy litigants and their legal teams to financially and emotionally exhaust opponents, regardless of the merits of their cause. In July, the European Parliament adopted a range of measures to protect journalists and human rights defenders against such cases.
Fifth, there’s the possibility of imposing personal cost orders against legal representatives to penalise their errant behaviour.
Courts have awarded these orders for gross negligence or intentional misconduct on the part of legal practitioners including abuse of process and the dilatory and obstructive conduct of legal practitioners. Examples of intentional conduct that have been sanctioned includes conduct that results in an abuse of process, litigating recklessly, misleading the court, dilatory tactics, pursuing a hopeless case, and frivolous and vexatious litigation.
Liability for punitive cost orders against vexatious litigants or costs out of legal practitioners’ pockets would surely make them think twice before using Stalingrad strategies and malicious SLAPP suits.
Advocate Gary Pienaar, senior research manager in the Developmental, Capable and Ethical State research division at the HSRC, contributed to this article.
Narnia Bohler-Muller receives funding from government and independent funders for her research projects at the Human Sciences Research Council. She was shortlisted for the position of Public Protector in the year that Adv Busi Mkhwebane was appointed.