LAW MATTERS: When preliminary litigation obstructs justice

THE SABC journalists who are facing disciplinary charges for standing up to bullying at the public broadcaster say one of the reasons they went directly to the Constitutional Court is that it was clear the SABC would use the courts and litigation to delay and frustrate resolution of their cases.

It does feel totally outrageous that state institutions can litigate endlessly to delay an outcome. The availability of different legal options is supposed to serve the cause of justice, not frustrate it. In fact, former deputy chief justice Dikgang Moseneke once remarked that strategic preliminary litigation was “almost a national pastime”.

The best example has got to be the trial of Gary Porritt and Susan Bennett, who were indicted in 2004 for fraud and tax offences and have seemingly thrown everything but the kitchen sink into delaying their trial — including going all the way to the Supreme Court of Appeal demanding that Legal Aid pay for their defence, after spending R23m in preliminary skirmishes.

But the Don Dada of strategic preliminary litigation has got to be President Jacob Zuma. In 2008, the late chief justice Pius Langa said it was “undesirable” to engage in preliminary litigation with the sole purpose of delaying a trial. But there could be no absolute rule in this regard: “The courts’ doors should never be completely closed to litigants” because where human rights are at stake, the courts should always be there, the former chief justice said.

Langa’s comments were — surprise, surprise — made in a judgment concerning none other than Zuma and related to the corruption charges that he has successfully resisted pleading to since 2005.

When I began reporting the case, the big question was whether Zuma was going to apply for a permanent stay of prosecution. But it never got to that as the charges were dropped. Then the DA entered the fray, going to court to set aside the dropping of the charges. Since 2009, the president, the National Prosecuting Authority (NPA) and DA have locked horns in a marathon legal battle over the decision to drop the charges. They went all the way to the Supreme Court of Appeal just over accessing the record of the decision. Twice. Now the case is working through the appeal courts. Then, even if the Constitutional Court agrees that the decision was irrational, the NPA may still decide — once again — not to proceed. The prosecution policy says prosecutors may review a prosecution at any time before an accused has pleaded. Of course, they must do so rationally. Cue another court challenge. Or, the president could apply for a permanent stay. The mind boggles.

Sometimes litigation can be prolonged for good reason, hence Langa’s caution. But the sad part is what all these legal battles (another example was Dave King’s epic fight with the revenue authorities over his tax bill) have in common is that the people involved have the funds to keep at it.

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When you have a billionaire or the president on one side and the state on the other, then at least there is equality of arms even if it is a huge waste of money. But when you have poor journalists against the mighty SABC, it feels particularly wrong. Worst of all is we have judges doing it and judges of the highest court to boot.

The “Hlophe saga” began in 2008, when the justices of the Constitutional Court complained to the Judicial Service Commission (JSC) that Western Cape Judge President John Hlophe had tried to influence the outcome of pending judgments connected to corruption charges against Zuma. Incidentally, one of these is the judgment from which I quote above.

There was litigation before the JSC began its process to decide the complaint. There was more litigation after the JSC cleared Hlophe. But then, when the JSC had to start all over again, it was two justices of the highest court doing the delaying. Justices Chris Jafta and Bess Nkabinde, who are supposed to be the main witnesses against Hlophe, challenged the lawfulness of the tribunal set up to finally resolve this dispute. They went to (and were rejected by) the high court, the Supreme Court of Appeal and the Constitutional Court.

When the Constitutional Court turned them away, they applied for the court’s order to be rescinded, simply saying it was wrong. I said earlier there is sometimes good reason for preliminary litigation, but I have wrestled with this case endlessly and I just can’t see a good enough reason.

Think of the consequences.

• Rabkin is law and constitution writer



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