The Stalingrad defence is not taught in law schools and it has a certain charm — its application needs only a passing knowledge of the law. Anyone is capable of advancing it with no legal training at all. All one needs is familiarity with a few procedural rules and a little imagination, if one finds oneself on the wrong side of the prosecuting authority.
The first rule is that anybody can bring an application to a court once charged with an offence. And the first step is to think of a reason you should not be prosecuted. It need not be a good reason — any reason will do — because succeeding is not the point of the Stalingrad defence. The point is only to have an application before the court.
Having conjured up a reason, the next step is to formulate an application. That is not difficult. A notice asking the court to stop the prosecution, an affidavit giving the reason, delivery of the application to the registrar and the prosecuting authority, and the Stalingrad defence has been set on its course.
The application to stop the prosecution will probably fail, but that is not a problem, always bearing in mind that the Stalingrad defence is not about succeeding. Having lost, you will then ask the court to allow you to appeal. If that fails it is also not a problem. You will then apply to the Supreme Court of Appeal to allow an appeal. It is also no problem if that fails because you will then apply to the Constitutional Court to allow an appeal.
No matter if that also fails — by then you have gained a reprieve of as much as 12 months, and perhaps even more. You can gain at least another six months from other silly applications — like an application to the Supreme Court of Appeal to reverse its decision and, when that fails, an application to the Constitutional Court to reverse its decision, and so it can go on. By then, one ought to be up to 18 months or more.
But here is the true beauty of the Stalingrad defence — after failure upon failure, it can be started all over again with a new reason why you should not be prosecuted. Round and around it can go in perpetual motion.
But surely there is a flaw, and indeed there is. What has meanwhile happened to the prosecution? Why has it stalled? Once the application to stay the prosecution failed, why did the court not simply proceed? There is no good reason at all. It stalled only because the prosecutor and the judge allowed it to be stalled.
Some might say that once an appeal has been asked for, the proceedings are automatically stayed as a matter of law, but they are wrong. The law stays an order that has been granted when there is an appeal. It does not stay proceedings when an order has been refused.
It is true that an application to appeal might be granted by the Supreme Court of Appeal or the Constitutional Court, but still, that is not a bar to the prosecution proceeding. It might end up that an appeal succeeds and there is a mistrial, and the accused person is acquitted, but nothing has been lost. The position would be no different to what it would have been had the prosecution been disallowed.
There are some who blame the lawyers for the Stalingrad defence. They say the lawyers are unethical and must be barred from advancing ridiculous cases, but they are wrong. The judges, not the lawyers, are in charge of what happens in the courts. They need not abdicate to shameless lawyers. They need only dismiss ridiculous cases and get on with their job.
Not once since the invention of the Stalingrad defence has an application to disallow a prosecution succeeded, neither in the first court nor on appeal. A little backbone on the part of the prosecuting authority and the judges, a little confidence of judges in the decisions they make, a little getting on with the job at hand, and that will be the end of the Stalingrad defence. In reality, it is no defence at all. DM
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The ABC of the Stalingrad defence
It is good and healthy when citizens and commentators take an interest in the law, particularly in a society where nothing much happens that doesn’t end up in the courts. Remember when they puzzled over dolus eventualis? These days, talk is of the ‘Stalingrad defence’.