A popular phrase describing recent high profile criminal trials (especially those concerning political figures implicated in corruption trials) has been the use of the ‘Stalingrad Defence’. This term has no place in the legal history of our criminal justice system, so where does it come from and what does it mean?
Stalingrad was a major Russian city (now Volgograd) which came under attack by German invading forces during World War II. The Germans had a much more powerful and highly developed armed forces than the Russians, and had till then swept through other Russian cities easily. However the Russians were determined not to lose Stalingrad and threw everything at its defence. This became a war of attrition with the Russians fighting for every street and every buidling, gradually wearing the German forces down and eventually succeeding in retaining their city.
So in these criminal trials, defence teams have adopted a similar strategy, knowing they have an inferior case but determined to fight their case at every possible angle and opportunity. This includes numerous pre-trial applications aimed at not starting the trial itself. Probably the most famous of these defences is the current corruption trial against former president Zuma. The actual trial was scheduled to start long ago, but the defence have brought several applications causing each trial date to be postponed time and again.
One of these applications was to ask the court to remove prosecutor, Adv. Billy Downer, claiming he had ‘no title’ to prosecute. This was brought under Section 106(h) of the Criminal Procedure Act. The merits of their application was so poor it did not have the slightest chance of success and has already been rejected by the trial court. The defence team would have to be legally naive to think it would actually succeed, but that is not the main objective. The application simply forms part of the defence strategy of delay, and fighting the oppostion (the NPA) at every conceiveable place. It is the defence of Stalingrad all over again and an attempt to wear down the opposition. To simply meet the NPA head on, on the facts, would appear to court disaster. Their case has been largely successfully tested in the previous case against Schabir Shaik and they have a highly skilled prosecution team.
You can rest assured this will not be the only application brought by the defence to attempt to delay the start of the trial itself. But it is not only high profile matters that engage in the strategies of delay. Every day cases in the magistrates courts are postponed regularly, sometimes for the flimsiest of reasons. Our constitutional democracy has highlighted the rights of accused persons in criminal trials and courts are reluctant to be seen to be infringing on them, so these postponements are often granted.
Justice is a strange animal not easily understood by the man in the street, but the protection of the rights of the accused are enshrined in the Constitution and courts must enforce them. However that does not mean that accused persons can do what they want in court and all applications made by them will simply be granted. Courts have to draw a fine line between protecting the rights of the accused, whilst also being mindful of the rights of society itself. Society can demand of courts that persons accused of crimes be tried within a resonable time, and guilty persons be suitably punished. It is not an easy task to balance these rights.
But the guiding principle for courts in adjucicating matters is one of fairness. And fairness is a double-edged sword – it applies to the accused, the State and victims of crime as well. In one of the earliest constitutional court judgements, Judge Kriegler held in the case of Key v Attorney-General, Cape of Good Hope Provincial Division and Another that fairness is the cornerstone of our criminal justice system. In his judgment he said the following: ” In any democratic criminal justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale. To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international human rights bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by state agencies in the prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the Constitution demands is that the accused be given a fair trial.”
It would appear that the Stalingrad type defence could possibly be descibed as an ‘ingenious legal strategem’ and is inconsistent with the principles of fairness so well framed by the Constitutional court in the above case.