The application by a former attorney of the Western Cape High Court – who was removed from the bar a few years ago amid accusations of theft and fraud – for hard copies of documents relating to a criminal matter, has been dismissed in the high court.
Thembinkosi Jiyana had sought that the documents, which were sent to him in electronic format, be printed so that he could make his defence, but the court ordered this should be done at his own cost.
The hard copies are estimated to cost about R14 000 as the documents ran into an excess of 14 000 pages.
Jiyana’s removal from the roll related to serious trust fund defalcations, amid allegations of theft and fraud. He was admitted as an attorney during 2002 and was subsequently removed in December 2013.
Following his removal, Jiyana was required to surrender all the files in his practice to the erstwhile Cape Law Society (CLS), which thereafter appointed an attorney, a Mr Sirkar of Herold Gie Attorneys, Cape Town, as a curator to handle those files further.
Sirkar took possession of the files in August 2013.
However, it further appeared Jiyana tried to conceal documents relating to his criminal doings in the ceiling of his former practice.
The judgment, by Judge Patrick Gamble, read: “In an affidavit filed in the criminal proceedings referred to, Sirkar says that he informed the applicant in September 2014 that he was entitled to access the files then in his possession by prior arrangement, but that the applicant never took up that offer.
“Sirkar goes on to point out that in October 2016 he was contacted by the landlord of the Jiyana’s former office premises and, after investigation, Sirkar found a collection of the Jiyana’s client files and papers in the ceiling of the office. At a later stage, says Sirkar, he was contacted by the State and asked to make hard copies of the file contents available to it as Jiyana had requested same as part of his defence. Sirkar undertook to do so upon payment of the cost of copying.”
During October 2018 Jiyana then applied to the Legal Practice Council (LPC) for readmission to the roll of attorneys, believing that he had suitably mended his ways and was then a fit and proper person to practice as such.
The LPC informed him that it would oppose any such application in light of the fact that there were criminal charges lodged in 2014 which were still pending against him arising from the defalcations (misappropriation of funds). Before dismissing the application, Judge Gamble said: “Thus far the State has accommodated Jiyana by procuring the documents from the curator and has made these available to the him in electronic format.
“We were informed from the Bar that the applicant has been able to access the documents on his computer and he is thus able to view same.
“In my considered view, if Jiyana wants to make hard copies thereof 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.”
Enquiries to Jiyana’s legal team were not answered by deadline on Thursday.