Former attorney Thembinkosi Jiyana’s challenge against the NPA that delayed his criminal trial has been slammed by the Western Cape High Court.

A Business Day report says Judges Patrick Gamble and Chantal Fortuin alluded to the use of a so-called Stalingrad defence as his case was ‘bereft of any allegations’ and would ‘unnecessarily delay’ his criminal trial, which has been stalled for three years.

The criminal case against Jiyana can now continue in the Commercial Crimes Court in Cape Town. 

Jiyana was struck from the roll of attorneys in 2013 as he failed to account for the client’s trust funds. The Cape Law Society – later the Legal Practice Council (LPC) – appointed Shekesh Sirkar from Herold Gie Attorneys as curator.

Later, criminal charges were laid against Jiyana pertaining to the alleged mismanagement and possible theft from accounts.

Jiyana later applied for re-admission as an attorney, as he believed he was a fit and proper person. However, the LPC said it would oppose the application due to the ongoing criminal charges.

In 2020 Jiyana was arraigned before a magistrate on charges of theft, fraud and forgery. Almost three years later Jiyana has apparently not pleaded to the charges.

The reason is that Jiyana sought ‘further particulars’ from the NPA to understand the basis for the charges against him and how he must meet the NPA’s case.

In May last year the Cape Town Magistrate's Court dismissed Jiyana’s application for further particulars.

The criminal proceedings, however, were again put on hold when Jiyana appealed to the Western Cape High Court. Gamble and Fortuin, however, also dismissed his application.

The Business Day report says Gamble – who wrote the judgment – pointed out that courts take seriously applications like Jiyana’s, which arise in the middle of criminal cases.

‘The SCA deprecated what has since been dubbed the Stalingrad defence,’ he wrote, ‘designed to unnecessarily delay criminal prosecutions.’

It is only in the ‘rare case’ that the High Court will interfere with a lower court’s ruling on a matter arising in the middle of a case, while the main case is still pending.

Jiyana’s papers were ‘bereft of any allegations’ to justify his being such a ‘rare case’.

Gamble noted the NPA has ‘accommodated’ Jiyana and made the documents available.

Gamble also said: ‘If (Jiyana) wants to make hard copies ... for the purposes of advancing his defence, that is his prerogative but it is most certainly not the duty of the state to do so.’ 

The court dismissed Jiyana’s case, but with no costs order.

Full Business Day report

See also full Cape Times report

Judgment