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Durban - Senior Durban lawyer Themba Mjoli, who is representing alleged “axeman” (and former Blue Bulls flanker) Joseph Ntshongwana in his multiple murder trial, could be in hot water for taking on an acting judge appointment when he should have been in court on Monday defending his client.
And on Tuesday morning he will have to explain why he did not give “timeous notice” that he would not attend court on Monday, causing the trial to be adjourned.
“I intend to adhere to the audi alteram partem rule (let the other side be heard) to understand why he was not here. From that explanation I will take the matter further,” Durban High Court acting Judge Irfaan Khallil said, apologising to the accused, witnesses and the public for the inconvenience of the adjournment.
The trial - last adjourned in May - has been set down for two weeks.
On entering the court at 10am, Judge Khallil said he had been informed 15 minutes earlier by his secretary that Mjoli wanted to send him an email. He left court to read it.
On his return, he confirmed he had received an email sent that morning and also relayed to the KZN Judge President and prosecutor, advocate Rea Mina, that Mjoli said he was acting as a judge in Pietermaritzburg, and had matters in which the accused had been in custody for a long time.
Mjoli indicated he would be available on Tuesday.
Prosecutor Mina said the situation was unacceptable.
“These dates were set in May. He last sat as an acting judge in July. If he has part-heard trials then they must have been adjourned to this date after this matter was set down.”
She pointed out that there were three psychiatrists and a psychologist in court waiting to testify.
Judge Khallil agreed: “These dates were arranged in May. Four months later and Mr Mjoli appears to have other commitments.
“There is a duty on officers of the court to inform the court timeously if there are any problems which may cause the matter to be postponed.”
Earlier in the trial, Mjoli also failed to come to court one morning. The prosecutor informed the court just before midday that she had been contacted by a nurse at a clinic who said he was sick and receiving treatment. He later produced a doctor’s note for the judge.
Ntshongwana has been in custody since his arrest in April 2011. He is accused of being responsible for four murders, in which the victims were beheaded, two attempted murders and the kidnap and rape of a woman, all committed between December 2010 and March 2011.
He claims not to remember anything about the crimes he has been charged with and that he suffers from a “delusion disorder” and cannot be held responsible.
On Monday, he spoke for the first time during the trial when the judge asked him if he knew where his lawyer was.
When the matter adjourned earlier this year, it was after the evidence given by his psychiatrist, Professor Abubaker Gangat, who said the former rugby player must have been having a “psychotic breakdown” when he allegedly committed the crimes.
The State has attempted to show that Ntshongwana must have been aware his actions were wrong, because he allegedly fled from scenes and hid evidence, including the axe he allegedly used to chop off his victims’ heads.