Judge hits out errant lawyer

Acting  Bhisho High Court Judge Pumelele Hole has laid a complaint with the police and the Department of Justice and Correctional Services, saying court exhibits used in a 2004 murder trial had gone missing from the registrar’s office.

The documents were last seen in 2007 when Advocate Fezekile Nkombi “uplifted them for copying”.

Nkombi was named by the judge in court on Monday for removing evidence for no known reason. The judge said there were no records of Nkombi ever returning the exhibits.

The advocate has become the focus of a criminal investigation.

Contacted for comment yesterday, Nkombi said: “I was asked to prepare an affidavit regarding the matter. I’m busy with it.”

He said he took the exhibits as he was representing the accused in the matter and that he had returned them.

However, the court is of the opinion that he was not representing the accused.

After delivering a judgment on a leave to appeal application brought by Mkhuseli Tilimani, who is currently serving a life sentence for murder, Judge Hole referred the matter to the police and the department.

Tilimani has been in prison for 13 years after he and his co-accused Siyabonga Pato were sentenced to 15 years for robbery with aggravating circumstances and life imprisonment for murder in 2004. Pato died in prison in 2005.

Tilimani’s application for leave to appeal was dismissed primarily on the basis that while the legal prescribed time-frame for leave to appeal was 14 days after the matter has been finalised, he only appealed 11 years later.

Tilimani filed an application for leave to appeal his sentence on November 9 2015. He was represented by East London attorney Henry van Breda.

The application was initially heard in July last year in the Bhisho High Court. Then it emerged case records, including the judge’s criminal court book where he recorded his notes of evidence needed to make a decision on appeal, were missing.

The records, Hole stated, were taken by Nkombi from the registrar’s office on March 19 2007.

These included:

lExhibit A: photographs of the crime scene;

lExhibit B: preliminary form of Tilimani’s confession;

lExhibit C: preliminary form of Pato’s confession;

lExhibit E: a constitutional notice of Tilimani’s rights;

lExhibit H: postmortem examination report on the deceased;

lExhibit J: Tilimani’s confession and;

lExhibit K: Pato’s confession.

“These exhibits were still missing at the date of hearing of this application. Van Breda informed the court on affidavit that Nkombi had made an oral report to him to the effect that he had returned the exhibits soon after he had uplifted them.

“I pause here to note that it is not clear what interest Nkombi had in the said exhibits and why he apparently felt entitled to remove exhibits of a criminal trial from the custody of the registrar,” Judge Hole said.