Advocate Dali Mpofu and Tembeka Ngcukaitobi.

DURBAN - The public outcry on the line of questioning by Nigerian televangelist Timothy Omotoso's defence lawyer, Advocate Peter Daubermann, is not only a matter of concern to social media users and the public, but also to professionals in the legal fraternity. 

Top advocate Tembeka Ngcukaitobi described Daubermann's style of cross-examination as "abusive".

Daubermann's cross-examination was widely criticised after he asked the first state witness Chery Zondi, who has accused Omotoso of sexual assault and rape, how many centimetres he had penetrated her by. 

There’s scope for robust cross-examination, but there’s also a line that must not be crossed where it becomes an abusive kind of cross-examination. A witness is entitled to equality and dignity. I know there’s a lot of debate as to what are the rights of an accused in a criminal trial, the accused is not the only person with rights in a criminal trial,” said Ngcukaitobi.

He was speaking to the Sunday Tribune on the sidelines of the KwaZulu-Natal Law Society's annual general meeting where he had been invited as the guest speaker.

“So it’s a question of balancing those rights of the accused and the witness. In my own opinion in relation to this, I think the counsel overstepped the mark and he ultimately went to the side that is more abusive,” said Ngcukaitobi.

Ngcukaitobi said cross-examination was an engine for truth verification.

“It’s not an engine or an instrument of terror and an instrument of intimidation. It’s an instrument for verification of truth and that is where the line must be drawn, once it exceeds that function, then it becomes abusive and that is where I think in this case, counsel actually strayed. You can even look at some of the questions asked, it’s one thing to ask if there was penetration or not but it’s another thing to ask the degree of the penetration because penetration is penetration in the context of a rape case,” he said.

Ngcukaitobi also shared his views on an application by Daubermann to recuse himself from the case, citing bias. Judge Mandela Makaula rejected the application. Leave to appeal against the court's decision will be argued on Thursday, with Daubermann telling the Port Elizabeth High Court they were prepared to go to the Supreme Court of Appeals.

Daubermann contends Makuala was sympathetic with Zondi, had commended her for testifying and had aligned himself with her cause.

"There is absolutely no reasonable basis at which one can conclude that gives rise to that the judge being biasYou as a lawyer have a duty to be an ethical being in addition to being a hired gun by a client. We as lawyers are always told, we are officers of the court and that is because we have a duty to assist the court and the public to make sure the court arrives at a just outcome, it’s doesn't have to be an outcome that favours our clients, but it must be a just outcome when viewed in a broader public interest,” he said

He said the public lost confidence in the justice system when they see the court was not being used for finding out the truth but used as an instrument for intimidation.

SUNDAY TRIBUNE