The State on Thursday suggested that a trial within a trial be held by the court to determine whether a forensic company that investigated former eThekwini mayor Gumede was irregularly appointed or not. 

The forensic company Integrity Forensic Solutions CC (IFS) was appointed by eThekwini’s CIIU (City Integrity and Investigations Unit) to investigate irregularities in the R320 million Durban Solid Waste (DSW) tender. 

IFS compiled an investigative report on its findings, and this led to Gumede and her 21 co-accused being charged for fraud, corruption, and racketeering, among other charges. 

Jay Naidoo SC, representing Gumede, was cross-examining a state witness who was part of the management at CIIU, when prosecutor Reshma Athmaram objected to questions Naidoo had put to the witness- regarding when IFS had received its letter of appointment from the municipality. She further objected to the reference to the Masama report, which had found that IFS was unlawfully appointed.  

Earlier this year, the court ordered the State to make the Masama report available to the defence. However, on Thursday, Athmaram said the defence would have to make a substantial application to say why the Masama report must be part of the evidence in this case. 

As Athmaram objected, she suggested that a trial-within-a-trial be held to determine the admissibility of a report that was compiled by IFS, and for the court to see whether the appointment was irregular or not. 

“The basis of how IFS was appointed has been hanging over our heads,” Athmaram said. 

She said the State retained its position that the appointment of IFS was irrelevant.

Naidoo said from the outset it had been the defence’s case that IFS was unlawfully appointed. 

As the arguments got intense, Naidoo said it would be appropriate for the director of IFS, Leo Saunders, to be called as a witness and the investigative report to be introduced through him. 

However, Judge Sharmaine Balton interjected and dismissed the suggestion of a trial within a trial.

“At the nub is whether IFS was appointed irregularly or not in terms of administrative law, but this has no bearing on this case. It does not affect the work conducted and its findings,” Judge Balton said. 

The Judge said at the end of the case she would have to determine whether the charges against the accused had been proven beyond reasonable doubt or not. She emphasised that this was a criminal case and she accepted that she has to deal with some civil, administrative, and constitutional aspects. 

Judge Balton said, however, that at the end of the day, she would issue her judgment on whether there was fraud committed by the accused or not. 

nomonde.zondi@inl.co.za

Source link