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The Exploitation of SA's Legal System: A Post-Mortem of Public Protector's Case

Published September 26, 2023
9 months ago

After a gruelling four-year battle, the South African parliament finally achieved the impeachment of Public Protector Busisiwe Mkhwebane in early September of this year. Parliament’s decision, largely supported by the general public, illuminated an alarming trend with far-reaching consequences – the abuse of SA's court system.

Mkhwebane, allegedly leaning on a defence strategy akin to the 'Stalingrad defence,' managed to protract the litigation process, thereby stalling her impeachment. This defence mechanism, named after the WWII siege of Stalingrad, is characterised by repeated appeals and legal manoeuvres designed to delay proceedings, thus draining plaintiff resources and buying the defendant precious time.

In analysing why such vexatious litigations continue unchecked, the primary enablers are identified as contentious lawyers, over-cautious parliamentarians, and judges lacking courage. Former Constitutional Court justice, Edwin Cameron, has also implicated the inaction of the Legal Practice Council as an enabling factor.

Concerns regarding this defence strategy extend beyond the Mkhwebane case. It's seen to be exploited by other figures in power, such as former president Jacob Zuma in his 19-year struggle to evade bribery allegations. The extensive use of this defence strategy not only manipulates the legal system but also places a significant burden on state finances. Mkhwebane's numerous failed legal challenges to prevent her removal allegedly cost SA taxpayers an eye-watering R160 million.

Based on nearly 30 years of legal experience, five potential solutions have been proposed to curb the misuse of the legal system by wealthy and influential individuals. They include the implementation of state attorney guidelines for funding legal cases, punitive cost orders to deter misuse of the legal system, and protective measures against SLAPP cases. The legal council should also scrutinise lawyers engaging in delaying tactics, while personal cost orders against erring legal representatives could serve as an additional deterrent.

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