I wasted time, and now doth time waste me.
William Shakespeare (in Richard II)
Time is on my side, yes it is
The Rolling Stones (from “Time is on my side”)
Introduction: process without end
In South African political conflict, an uncomfortable pattern is hardening: outcomes no longer turn on who is right, but on who can keep the process alive longer. Litigation often overtakes, replaces or supplements democratic and other governmental processes, mostly acting as substitute for dysfunctional state functions.
I have practiced law for more than twenty years, and I have dished out, and have been on the receiving end, of this reality in our legal systems for all of that time. It is not so much a question of the way the system is, as the way the system is applied. My dad used the term “paper war” often in our discussions of these tactics, and I think it is an apt term to use in our discussion here.
Of course such delay and dysfunction, these paper wars, are used as tools by some of the parties to these legal conflicts. The problem is well-studied and efforts at trying to improve the situations are perpetually considered and implemented. It is in the political arena, however, where a specific conflict analysis can, in my view, be a more practically helpful contribution to this developing constraint on the practical application of justice in South Africa.
To that end, I want us to consider a few aspects of the problem, from Jacob Zuma's "Stalingrad tactics" to the commissions-industrial complex (as we can start describing it), when legal process itself becomes the most efficient political weapon. The Jacob Zuma's corruption case has run for over twenty years since his first indictment in 2005, and not a single witness has testified. By 2026 the National Prosecuting Authority had to ask a court for an unprecedented ruling: that the trial proceed regardless of whatever appeals the accused might raise. Judge Chili ultimately found that Zuma and Thales had deployed "Stalingrad tactics", ie an "endless sequence of applications and other steps in which the accused raised spurious objections to the investigation and prosecution."
This is not an accidental malfunction of the justice system. It is a much beloved strategy, certainly not invented by the Zuma team. Our first uncomfortable observation is that its effectiveness rests precisely on the integrity of the procedure itself. The more you respect process, the more effectively process can be used as a weapon. In conflict theory terms, this is a sophisticated form of procedural attrition warfare. Classical attrition seeks to destroy the opponent's capacity to fight. Procedural attrition seeks instead to exhaust the opponent's time, resources and will, while closing off the window in which the conflict might have been resolved politically.
When conflict is successfully converted into a purely technical legal dispute, it leaves the realm of political settlement and enters a grey zone of jargon, rules and waiting. I have recently written an article setting out the conflict building blocks of this use of the conflict clock (available at https://www.conflict-conversations.co.za/conversations/time-as-contested-terrain-time-waits-for-some-delay-as-strategy-in-conflict ) for the reader who needs to use these concepts in a practical sense.
Stalingrad Tactics: The Military Logic of Delay
The popular term, used in media and social media alike, of course refers back to the famous battle for Stalingrad during the Second World War (a fascinating topic in its own right). The military logic of Stalingrad was not victory but the entrapment of an enemy in a war of attrition that could never be "won", every ruined block contested again and again, every street corner paid for in blood, until the attacker's resources and will were exhausted. And then you start again. Zuma's legal team transplanted that logic into the courtroom: losing every case is fine, so long as every case takes years to lose. I am only using the Zuma litigation here as a case study, there are of course numerous others, easily trackable through our front pages on a nearly daily basis.
Constitutional expert Pierre de Vos put it with precision: "Even if Zuma loses every court case, he still wins, if he can delay testifying until after the commission's term has ended." This is a counter-intuitive conception of victory: legal defeat becomes strategic victory. Since 2005, Zuma has lost virtually every substantive legal dispute, yet he secured nearly two decades of liberty and a trial that has never truly begun. In its 2026 application, the NPA set out the scale of the tactic: seven sets of doomed High Court pre-trial proceedings, two unsuccessful representations to the National Director of Public Prosecutions, one doomed special plea, all "aimed at some aspect of the investigation and prosecution." Judge Chili walked through the timeline item by item: the 2018 application for a permanent stay of prosecution, the 2021 application to remove the prosecutor, the 2022 private prosecution, the 2024 second removal application, Thales's application to quash the charges.
Every application failed, but every application consumed time. In conflict analysis, this is asymmetric escalation, specifically run in reverse. Normally the weaker party in an asymmetric conflict escalates - guerrilla war, sabotage, terror - to counter a stronger opponent. Stalingrad tactics do the opposite: the weaker party de-escalates the conflict into a highly institutionalised legal process in order to exhaust the stronger party. The prosecution holds the resource advantage, but that advantage is nearly useless against procedural delay. Every notice of appeal, every interlocutory application, requires the prosecution to spend time and manpower, and time is precisely what the prosecution lacks or feels more acutely when it is lost.
The critical mechanism is this: the line between the legitimate exercise of a right of appeal and a strategy of delay is, at the operational level, almost impossible to draw. An accused has the right to appeal an adverse ruling. Many postponements are necessary on the merits and the specifics of a trial. A strategist has the right to bring an appeal he knows will fail. Legal procedure contains no built-in mechanism for distinguishing "good-faith litigation that ultimately fails" from "conduct undertaken with failure as its intended objective."
Beneath this lies the procedural symmetry trap: a rule-of-law state must treat all accused equally in procedural terms, whatever their motive. That formal equality becomes a burden for the stronger party in an asymmetric conflict, because the stronger party (the prosecution) burns resources faster than the weaker party (the accused), while the rules apply equally to both. That Zuma funded his legal costs in part from public money illustrates the point: the premise of procedural symmetry - roughly equal resources on both sides - does not always exist in reality, especially when we start viewing time as an asset, a resource.
The Commissions-Industrial Complex: Procedure as a Substitute for Decision
The Zuma case is an explicit, individual-centred instance of delay. But South Africa's paper war has a subtler, more systemic variant: the systematic use of the commission mechanism. This conflict reality of course finds fertile ground in a government that so easily, and so often, regards the deflection of effective leadership to commissions of inquiry as a political strategy or remedy of its own. Academic research and empirical data have quantified the pattern. The Zondo Commission ran four years, cost over a billion rand, heard 300 witnesses, produced 75,099 pages of testimony, named 1,438 individuals and entities, and yielded a prosecution rate of roughly 5%. Seriti and Marikana both produced rates of zero.
Analysis of four major commissions (Seriti, Marikana, Zondo, Nugent) reveals a striking regularity: a systemic disconnect between the thoroughness of investigation and the scarcity of prosecution. This is not because the commissions failed to generate evidence. On the contrary, Zondo produced the most detailed record of corruption in South African history (thus far).
The problem is that the record itself became the endpoint rather than the starting point. The research describes this as "kicking an issue into the long grass", an investigation used as a functional substitute for decisive judicial and administrative action, rather than a pathway to prosecution. The concept of a "commissions-industrial complex" has analytical value here, and serves as more than a rhetorical device or exaggeration. Establishing a commission generates a series of political effects: it signals to the public that the matter is being taken seriously, channels media and public pressure into orderly legal and parliamentary processes, and buys delay space for consequence management. Something is being done here, right?
When the Madlanga Commission was established in parallel with a parliamentary portfolio committee, analysts read it as "institutional layering" rather than "institutional rupture", new oversight structures stacked atop existing arrangements, without addressing the deeper governance failures in enforcement and prosecution. At this stage of our development, this was noticed – and ignored. In conflict theory, this is institutionalised avoidance raised to a system. All parties, from political leaders, the bureaucracy to the accused, benefit from the commission's long life. The commission offers the appearance of resolving conflict while sparing any party the risk of substantive consequences.
The more complex, protracted and ritualistic the procedure, the more effectively political conflict is converted into technical dispute. It is distraction, the national equivalent of a laser pointer on the carpet. And the resolution of technical disputes requires expertise, patience and time, the three resources a challenger is least likely to possess. The Nugent Commission proves the point by contrast. It cost only R8.8 million, ran briefly, stayed narrowly focused, and its recommendations were implemented swiftly, for instance, Moyane was removed, Kieswetter appointed as SARS commissioner, Bain repaid R217 million. Nugent's success lay not in deeper investigation but in simpler procedure and faster decision. Its success throws the systemic failure of the others into relief.
The Paradox of Procedural Legitimacy: Why Paper War Works Paper war's effectiveness rests on a profound paradox: its weapon is the rule of law itself. When an accused files an appeal, he exercises a constitutionally protected right. When a commission is established, it is created by a lawful executive or legislative act. When a prosecutor asks a court to halt delaying tactics, he must prove the accused's motive was bad faith, and proof of bad motive is extraordinarily difficult within a proceduralist legal culture. Judge Chili had to work through Zuma's legal challenges item by item, demonstrating that they "were all unsuccessful," before he could arrive at a finding of Stalingrad tactics.
The deeper paradox is this: respect for procedural integrity is precisely what creates the space for procedural abuse. If the legal system imposed strict limits on the right of appeal to prevent delay, it would (so it is argued) infringe the accused's legitimate rights. If it imposes no such limits, it opens the door to Stalingrad tactics. This is a genuine dilemma, not a problem solvable through "better rules." Section 35(3)(d) of the Constitution guarantees the right to a trial beginning and concluding "without unreasonable delay", but the beneficiary of that right is the accused. It was designed to protect the accused from the state, not the state from the accused. To hide this reality behind judicial discretion is to deny the existence of the problem, and to kick that can down the road.
One detail De Vos observed deserves attention: the Zondo Commission was "exceptionally careful" with Zuma, which included agreeing to send him a list of "areas of concern" (a courtesy other witnesses did not receive), and hesitating to issue a summons to compel him. De Vos's reading is that the Commission was overly cautious. What it feared was not Zuma the man, but the tactic Zuma embodied: an opponent willing to lose every battle in order to win the war. In conflict terms, this exposes a deeper phenomenon: the structural vulnerability of institutions to the "institutional exploiter." Every institution assumes a degree of cooperation, old-fashioned, proper adherence to the spirit, not merely the letter, of the rules. It tacitly demands it of legal practitioners and tacitly expects it of parties. When one party systematically exploits the letter against the spirit, the institution finds itself unable to self-correct. Zuma represents an extreme case of this institutional blowback.
South African Specificity: Why Here, Why Now
I remember, as a young articled clerk, being sent to do just postponements for weeks on end, nothing else. A process even in the 90s regarded as so simple that a junior lawyer could manage it. Paper war is, as indicated, of course not unique to South Africa, but South Africa's institutional and, increasingly, its political conflict conditions make the tactic unusually effective.
First, structural delay in the court system provides fertile soil. As of February 2025, civil trial dates in the Gauteng High Court were being allocated into 2031. Johannesburg High Court directives in August 2024 indicated that parties in trials requiring more than five days would likely receive dates after July 2027, ie a wait approaching three years. At that timescale, "delay" requires no special technique: merely initiating a proceeding already entails an automatic postponement of years. The Moseneke Report recommended adding at least 20% more judges to every High Court division, but implementation stalled amid opposition from court leadership.
Second, the institutional fragility of the prosecuting authority makes strategic prosecution difficult. Academic analysis of the NPA has run under titles like "legal gymnastics, passing the ball, and false starts." The NPA is described as an institution weakened, recalibrated and repurposed by "a premeditated and coordinated plan" to ensure politically connected figures escape accountability. Batohi's struggles as National Director of Public Prosecutions - from calls to "whip" senior prosecutors into shape, to accusations of being "captured" that she then withdrew - reflect a deeper problem: even where political will exists, institutional capacity is often insufficient to sustain strategic prosecution.
Third, the ritualistic tendency in our political culture makes commissions the instrument of first resort. When a political crisis erupts, establishing a commission is the standard South African response. It demonstrates seriousness, buys time, and moves conflict off the streets into boardrooms. But the effect is to "channel media and public pressure through orderly legal and parliamentary processes, while providing delay for consequence management." South Africa's specificity lies in how these three factors form a self-reinforcing loop: judicial delay makes legal tactics effective; prosecutorial fragility makes strategic prosecution hard; commission culture provides a legitimate channel for political avoidance. Each link raises the returns and lowers the cost of the paper war.
Modern Conflict Solutions: Breaking the Cycle of Procedural Attrition
Against the structural predicament of paper war, conventional prescriptions such as "strengthen the rule of law," "improve efficiency" and so on remain superficial. What is needed are interventions aimed at the dynamics of the conflict itself, not mere institutional repair. The cogs and wheels of what makes the machine run need attention, as a conflict analytical project. The following draw on advanced conflict analysis frameworks, and I believe are applicable, and overdue in the South African arena. It may require statutory and procedural debate and implementation (not to mention political will), but it is all doable – urgently and very cost efficiently.
(i) Break the Procedural Symmetry Trap: Introducing "Procedural Cost Allocation"
The core premise of Stalingrad tactics is that litigation costs fall on the accused, whose resources (often taxpayer-funded legal costs) can be extended indefinitely. The solution is not to restrict procedural rights, but to reallocate the cost of procedural abuse. Mechanisms include: (a) where the prosecution successfully proves a pattern of "repeated applications with no reasonable prospect of success," the court may order the accused to bear the prosecution's costs, changing the accused's cost-benefit calculus. Insofar as precedent for this exists, it should be tightened and used more often, more efficiently; (b) a fast-track "procedural abuse review," in which a dedicated judge rules within days on whether an application has a "reasonable prospect," rather than waiting months or years for full argument. The logic is to change the cost asymmetry in the war of attrition: today, a failed application costs the accused little (legal fees borne by public funds or the accused), while it costs the prosecution enormously (time, manpower, interruption). Making abusive procedure carry immediate, substantive cost breaks that asymmetry. Raising the costs (in whatever applicable currency) in asymmetric conflict is a very effective remedy elsewhere, it should be transferred to our courts and other legal forums.
(ii) Actively Create a "Ripeness Window": From Hurting Stalemate to Enticing Opportunity
Ripeness theory's core insight is that conflict resolution requires a "mutually hurting stalemate" (MHS), where both sides recognising that continuing costs more than settling. Paper war persists in South Africa precisely because no hurting stalemate exists for the accused: the returns to delay always exceed the costs. The solution is to actively create an "enticing opportunity", to use William Zartman’s term, an exit path whose short-term returns exceed those of continued delay. This could include (as some recent developments want to integrate): (a) sentencing discounts where the accused admits the facts but contests legal characterisation; (b) treating "consent to expedited proceedings" as a bail condition or sentencing factor; (c) a "procedural limitation" mechanism, eg if the accused does not advance a substantive defence within a reasonable period, related rights are deemed waived. We find some very solid, and equitable, examples in the CCMA of all places. Limitations of review, of representation, of postponements need not be the legal atrocities they are often made out to be. The key is to change the accused's calculation of "the future." Stalingrad logic depends on an open-ended future: every new application opens a new window. Structuring that future - fixed endpoints and exit incentives - breaks the logic.
(iii) Institutional Insulation: Separating Procedural Conflict from Substantive Conflict
Much of paper war's power comes from procedural dispute eclipsing the substantive question. In the Zuma matter, the procedural fight over whether the prosecutor should be removed effectively displaced the substantive question of corruption. The solution is a fast-track adjudication mechanism for procedural disputes, with a dedicated appellate court issuing final rulings within a fixed period (say 30 days), insulating procedural conflict from the main case. Other very effective models exist in comparative law, such as judges making decisions on process via oral evidence platforms in a matter of hours or days. This mirrors the logic of dual-track diplomacy: separating different layers of a conflict so that deadlock at one level does not block progress at another. In judicial terms: procedural disputes resolved on a "fast track," the substantive trial proceeding undisturbed on the "normal track." There have been much debate and attempted integration on this front, with very little progress to show.
(iv) Commission-to-Prosecution Linkage: Ending the Illusion of the Procedural Endpoint
This may seem obvious, until we pause and consider the question. The core pathology of the commissions-industrial complex is that the report is treated as the endpoint rather than the starting point. The solution is to convert commission recommendations into binding timelines and accountability mechanisms. Possible mechanisms, all built on solid legal foundations, may include:
(a) legislation requiring that recommendations be answered by the relevant prosecuting authority within a fixed period (say 12 months) with a written "prosecute or decline" decision and published reasons;
(b) an independent "recommendation implementation monitor" whose sole function is to track the status of each recommendation;
(c) treating "failure to decide on a commission recommendation" as reviewable administrative inaction. The Deputy Minister of Justice claimed in an October 2025 parliamentary reply that "the suggestion that commission recommendations are not implemented is untrue." But the empirical data show that even in cases "being implemented" (intelligence reform, procurement reform), there is a systemic disconnect between the timescale of implementation and substantive accountability. The solution is not to deny the problem but to convert "implementation" from a vague political promise into a measurable, accountable institutional process.
(v)The Ultimate Strategy: From Paper War to Substantive Dialogue
All of the above are technical adjustments within the existing institutional framework. But the most fundamental solution, if also its most controversial, I suppose, may require moving beyond the frame of "lawfare" itself, returning the conflict to the political and social domain of dialogue. In conflict theory this is conflict transformation, not resolving or managing a particular dispute but changing the structure and dynamics of the conflict itself. For South Africa, this means acknowledging that, for example, the Zuma case is not merely a legal case; it is a symbol of deeper divisions, over race, class, power and historical justice, involving crucial aspects of identity conflict that must be understood and managed carefully in order to be effective. Purely legal solutions cannot touch those divisions and dynamics.
Paths toward transformation might include:
(a) a non-judicial "truth and consequences" mechanism, allowing historical corruption and abuse to be acknowledged and addressed socially, without total reliance on criminal prosecution; (b) expanding "accountability" from a purely punitive frame to a restorative-justice frame, giving victim communities an institutional voice;
(c) building a cross-party "accountability consensus" in politics, so that procedural delay ceases to be an acceptable political strategy.
This last path is the hardest and the most fundamental. It requires South Africa's political elite to acknowledge that the ultimate victim of paper war is not a particular accused or a particular prosecution, but public belief in the very possibility of justice, the efficiency and conflict competency of those appointed to serve those communities, and ultimately in democracy itself. When procedure devours substance, when delay replaces decision, the "justice" the rule of law promises becomes a promise that can never be reached.
Conclusion: When Procedure Devours Substance
The core insight of paper war is this: in the modern rule-of-law state such as South Africa, procedure is no longer merely a tool for achieving justice. It has itself become a conflict power resource, deployable strategically to exhaust opponents, postpone decisions, and preserve impunity. Zuma's Stalingrad tactics are an extreme case, but the logic they reveal is general. When procedure is sufficiently complex, sufficiently protracted and sufficiently expensive, it ceases to be a mechanism for resolving conflict and becomes the continuation of conflict by other means.
Paper war is not won by winning cases. It is won by ensuring cases never end. For South Africa, this means the accountability crisis includes that this is not merely a crisis of impunity, it is a crisis of procedure substituting for decision. When a society possesses one of the world's most advanced constitutions, the most detailed commission records in its history, and an active system of judicial review, yet cannot bring a former president's corruption case to substantive trial, the problem is not that the law is inadequate. The problem is that good law can be used to do bad things. To use the law student argument that this is the price of justice is to simply, in modern times, misunderstand rather comprehensively the remedies and more positive conflict outcomes available.
The old saw has it that justice delayed is justice denied. Insofar as we allow justice to be delayed inordinately, we become a part of those denying justice.
Summary of main sources, references and suggested reading
Our blog at www.conflict-conversations.co.za has a rich variety of articles expanding on specific aspects of the article.
(Andre Vlok can be contacted at andre@conflict1.co.za for any further information.)
(c) Andre Vlok
October 2026
* Author’s note on the use of artificial intelligence in writing this article I learned to draft, argue and write in the hard school of litigation. I enjoy and value the very human process of creating ideas, of testing my own knowledge and thoughts. It is a process that I need, for answering some of my professional and even personal questions, it is cathartic and inspiring. Other than the most basic research assistance I do not use any AI in the creation of my written work, this article included. It is a matter of pride, of preference, and of mental health. Whether that is a wise choice or not, I will leave to the reader to decide.