A trial within a trial took place at the Durban High Court on Monday, as the State attempted to get evidence taken from the cellphone of former eThekwini City Manager Sipho Nzuza, admitted as part of the evidence in the R320 million Durban Solid Waste (DSW) tender fraud case. 

The DSW case involves former eThekwini Mayor Zandile Gumede, Nzuza, and 20 others. They all face multiple charges of fraud, racketeering, corruption, money laundering, contravention of the Municipal Finance Management Act and the Municipal Systems Act, related to the tender.

The DSW matter had to be paused on Monday to allow the trial within a trial to commence. 

The purpose of it is for the court to determine the admissibility of evidence obtained by the police from Nzuza’s phone.

State Prosecutor Reshma Athmaram, told the court that she intended to deal with the trial within a trial after the State witness, who was being cross-examined last week, had concluded her evidence. 

However, she said, because of the retired Lieutenant Colonel’s health, the main trial had to be paused. The media is prohibited from naming the Lieutenant Colonel. Athmaram said the Lt Colonel just had major surgery and is due to start extensive treatment. 

“Such treatment would make him unavailable for the trial within a trial. Due to his illness, it is uncertain if he will be available in the next session,” Athmaram stated. 

Before Lieutenant Colonel could testify, Nzuza’s lawyer, Advocate Griffiths Madonsela SC, told the court that they are objecting to the cellphone evidence of his client being admitted as evidence in the trial. 

“The evidence is inadmissible,” he said. 

Madonsela said Nzuza’s phone was seized without a warrant, without Nzuza’s consent and under false pretences that his phone would be protected from (being stolen by) other criminals. He said the taking of Nzuza’s phone by the police officers was a violation of his privacy in terms of Section 35 (5) of the Bill of Rights. 

The Lieutenant during his evidence said he retired in January 2021, and he was part of the  Directorate for Priority Crime Investigation (DPCI), national task team that investigated clean audit matters within municipalities and other government entities within KwaZulu-Natal. 

He said that during the course of investigations and with sufficient evidence, it emerged that Nzuza was involved in the irregularities of the DSW tender. He said that after a warrant of arrest had been granted, the lead investigating officer (IO) contacted Nzuza to make himself available. 

And “to also notify his legal representatives to meet at the Durban Central police station,” he said. 

He said indeed Nzuza came to the police station with his lawyer and other people on March 10, 2020. The IO informed his lawyers of the charges against him. He said that after they arrested Nzuza and he was due to apply for his bail, he had asked Nzuza for the name of a relative and their address. 

“He gave me the name of a relative but could not remember the address,” he said.

He said he approached Nzuza again for the address, and Nzuza gave it to him.  He said while Nzuza was in the holding cells and one of his colleagues was taking more information from him, he noticed that Nzuza was using his phone. 

“I called for him and requested that he hand over his phone to my colleague for investigation purposes. He agreed,” the Lieutenant Colonel said. 

He said Nzuza’s lawyer was in the vicinity when they spoke with Nzuza, and after they took his phone, they went to her to say that they had taken Nzuza’s phone for investigation purposes. He said Nzuza and his lawyer did not object to this. 

He also stated that there was no time for him to apply for a search and seizure warrant for Nzuza’s phone. He said he relied on section 22 of the Criminal Procedure Act, which allowed him to confiscate the phone if he saw that it played a role in the commission of a crime. 

However, Madonsela produced a transcript of Nzuza’s bail application, where an objection was raised about the police taking Nzuza’s phone. 

The trial continues.

nomonde.zondi@inl.co.za

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