When judges don’t understand the Stalingrad Defence

Jeremy Gordin writes on Judge Piet Koen's strange recusal remarks in the Zuma matter

What about when judges don’t understand the Stalingrad Defence? 

Let me ask you a question with a small (20-word) preamble. It’s one thing if you or I or other members of the public don’t understand the so-called Stalingrad Defence, but what about when judges don’t understand it?

By Stalingrad Defence I am referring to what is generally defined as “a strategy usually used by a defendant to wear down legal proceedings by appealing every ruling that is unfavourable to the defendant and using whatever other means possible to delay proceedings. This tactic or strategy is named for the Russian city besieged by the Germans in World War II”.

If memory serves, it was the late Kemp J Kemp SC – former president Jacob G Zuma’s advocate until about 2018 – who first used it in connection with Zuma. “This is not a battle,” said Kemp, “where you send a champion out and have a little fight and that’s it – this is more like we will fight them in every room, in every street, in every house”. (The vershtunkende Press of the day should really have dubbed it the Churchillian Defence, not so?)

Let us now turn our attention to the strange tale of Judge Piet Koen and what took place in the Pietermaritzburg High Court on Wednesday this week.

Judge Koen had been scheduled to continue with Jacob Zuma’s (and Thint’s) er “protracted” arms deal corruption trial (about 17 years and counting) and prosecutor Billy Downer enjoined the judge please to so do. However, Judge Koen noted that there had been several “developments” since he had last dealt with the case. 

There were: Zuma’s private prosecution of Downer; Zuma’s further application launched on 14 October to the Constitutional Court for leave to appeal against Koen’s “special plea” judgment; the issue of whether that apex court application was properly lodged and therefore suspends Koen’s special plea judgment; and Zuma’s objection to Downer remaining involved in the trial, given the private prosecution.

All these issues [i] had to be considered, said the good Judge – “These developments have brought into sharp focus whether it is proper that I decide one or more of these issues, including eventually also issues such as whether Mr Zuma will receive a constitutionally fair trial at the end of the day.”

Koen continued: “Although the issue is mainly one of my own conscience [sic], I invited the parties during argument on 17 October to address any written submissions they may wish to place before me in regard to my possible recusal, by Friday, 21 October 2022, to which they raised no objection.

“Upon careful reflection, I have concluded that the issue of my continued involvement as presiding judge in this trial needs, in the interest of justice, to be addressed preliminary to any decisions [being made on the various recent developments] and any further directions regarding the resumption of the trial,” said Koen.

He then adjourned the trial to 30 January 2023 and ordered all parties to make submissions to the court registrar by no later than 3 November 2022 on whether he should recuse himself.

What do you think, brothers and sisters? Has Judge Koen been well and truly outplayed? Snookered by the trusty Stalingrad Defence? Have Zuma and his legal team administered what I call the “full-on Stalingrad shtup”?

Or, as a learned SC suggested to me, is Judge Koen simply thinking ahead quite cleverly – and realizing that when the trial is finally over (ha ha), he, Judge Koen, must have ensured that there are absolutely no grounds – such as the issue of “a constitutionally fair trial” – on which Zuma could appeal?

And that, for this reason, Judge Koen is taking a conservative and careful approach and, knowing what a bunch of foxes he is dealing with, has opted to ensure all his t’s are crossed and i’s are dotted. (Pardon the mixed metaphors.)

Problem with this line of argument is that I, even without a law degree, can tell Judge Koen for free that if and when Zuma’s trial is over (and if Zuma is still alive), and if the verdict is guilty on any of the charges, the verdict will be appealed anyway, as surely as night follows day – before the SCA, the ConCourt, and so on and on.

You see, it’s up to a judge to stop the silly games – to be the adult in the room – or the games will continue forever. Let me express this another way – and please pardon my language. The Stalingrad Defence succeeds because judges have no balls and allow it to succeed. (You can quote me on this.)

I fear that Judge Koen (who has the reputation of being a good person and judge) has, alas, lost his nerve. Has someone perhaps pointed out to him that KZN has had enough riotous looting for now? Or has someone maybe made even more unpleasant suggestions to him? I’m just asking.

Judge Koen says he thinks he might have to recuse himself. Why? A judge considers recusing himself because he has found that various interlocutory applications that he has been presented with are rubbish? Un-bloody-believable. It is precisely because defence counsel have taken up the court’s time spouting balderdash that the judge should get on with the trial.

It seems, alas, that Judge Koen might be running scared – as he has, alas x 2, from the start. After wasting a year listening to palpable codswallop, proper judges do not ask to be persuaded to recuse themselves, in writing nogal. What for? On what grounds does Judge Koen suggest he should recuse himself?

In a country that has become a circus at every level it is difficult to think of what to say about this comic development. Consider the absurdity. None of the parties asked the judge to recuse himself. The judge raised it himself from what he says is going through his mind.

Well, if the judge thinks he has cause to recuse himself then why does he not do so? Why does he need help from counsel to work out what is going through his mind? It is not unknown for judges to consider themselves conflicted in one way or another. If the judge thinks he or she is compromised, the judge independently recuses himself/herself.

So, two questions come to mind.

What (as I have asked) is the basis upon which the judge thinks he should recuse himself? He said it is because he has expressed “strong views” on the various applications he has heard. And that developments are “coming into sharp focus”.

He then asks counsel to make submissions to him. Submissions on what? Submissions on his state of mind? Submissions on how he has conducted proceedings thus far, about which nobody has complained? How is counsel supposed to make submissions if they don’t know his state of mind?

“Oh no, judge, don’t trouble yourself,” counsel might say. “We are perfectly content for you to continue. You have handled matters impeccably. It is true you have ruled against all the applications you have heard, but that, after all, is your job if the applications had no merit. And if you have done so decisively, well judges often dismiss bad points decisively.

“A judge is not required to be ambivalent. But if while doing so, you have developed a dislike for the accused and consider you cannot give him a fair trial, then recuse yourself, but don’t expect us to assist you, when we have no complaint”.

To return to the grounds for considering recusing himself. What, precisely, are they? That he has become biased? Then he ought not to be a judge. What are these things that are “coming into focus”? Must he not explain that to counsel if he expects them to make submissions. 

“Judge, if you doubt your ability to conduct a fair trial, then don’t make it our job to persuade you that you are right. In short, judge, take responsibility yourself. That’s why you are a judge”. Well, that is how I would say it, though don’t for a minute think that is my advice to counsel or to anyone. We ‘umble journos only think these things.

Though one thing I would suggest to Judge Koen is that, while he can, he should strongly suggest (to the NPA, I suppose) that the trial be moved out of KZN. It’ll engender more interlocutory applications of course, but it’ll make everyone’s life easier, especially whoever’s on the bench.

Did Judge Koen seriously think he would be conducting a trial in which there would be no interlocutory decisions to be made? Those who should know about these things, tell me they have yet to hear of a judge asking counsel to make submissions on whether he should recuse himself when nobody has suggested he should do so.

Of course, the die has probably now been cast (iacta alea est). Can Judge Koen possibly now continue once having questioned whether there will be a fair trial? Yet a year has passed with applications of so little merit that they have all been consistently turned down in every court. Well, that is the Stalingrad Defence.

If I were chief of Zuma’s legal team, I would insist that Judge Koen stays; I wouldn’t go anywhere near putting in grounds for Koen’s recusal. He seems a perfect judge for the Stalingrad Defence.

I began by asking a question. I would like to end by asking the same one – plus one other. It’s one thing if you or I or other members of the public don’t understand the so-called Stalingrad Defence; but what about when judges don’t understand it? Or, even worse, what about when judges do understand it but let it run on regardless?


[i] I quote from the learned Des Erasmus, writing in the Daily Maverick: “While Zuma’s various applications, including the one filed with the ConCourt last week, differ slightly, all are a continuation of his 2021 application, formally known as a “special plea”, to have Downer removed from the trial in terms of section 106 (1)(h) of the Criminal Procedure Act, which deals with a prosecutor’s ‘title to prosecute’. Zuma contends that should he be successful in this, he would immediately be entitled to an acquittal.

“In his application for leave to appeal Koen’s October 2021 dismissal of his special plea, Zuma introduced the allegation that Downer had breached section 41 of the National Prosecuting Act, by accusing Downer of leaking confidential medical information to News24 journalist Karyn Maughan via a third party. Both have contended that the information was in the public domain.

“Koen [also] found no merit in the allegation. In any event, Zuma recently instituted a private prosecution against the pair. Downer and Maughan have both filed applications to have the charges quashed, which will be heard in December.”

Incidentally, I reported on the Schabir Shaik trial in 2004/5 – and Downer, who was prosecuting, complained indignantly in open court to Judge Hilary Squires about me using some leaked “confidential” information (not from Downer, obviously). Based on this experience and on knowing Downer, I would (and do) say loudly and confidently that if there were anyone who would not knowingly leak so-called confidential information, it is Downer SC.

Btw, the reaction from Judge Squires was, I thought, instructive. Referring to the publication for which I then worked, Squires quietly said: “Well, Mr Downer, I for one don’t read [that publication], so it doesn’t matter really, does it?” But Judge Squires did go on to say that journalists should comport themselves properly.