The State successfully argued in the Durban High Court that a conflict of interest would emerge if the legal representative for former eThekwini mayor Zandile Gumede were also to act for Sandile Ngcobo, the municipality’s former deputy head of Supply Chain Management.

This ruling is in relation to the ongoing R320 million Durban Solid Waste (DSW) tender fraud case.

Ngcobo was previously represented by advocate Jimmy Howse SC, instructed by attorney Ivette Calitz from Calitz Crockart & Associates Inc.

The court said a potential conflict of interest would exist if Ngcobo were to be represented by Gumede’s lawyer, advocate Jay Naidoo SC, instructed by attorney Bulelani Mazomba, as the trial progresses.

Earlier this week, Judge Sharmaine Balton learned that the mandate of Calitz and Howse had been terminated. This left Ngcobo without a lawyer. Ngcobo indicated that he would like to be represented by Naidoo.

The decision was influenced by the fact that Ngcobo is no longer employed by the city; therefore, he could not afford to pay Calitz Crockart & Associates Inc. 

Naidoo SC is representing Gumede, the former deputy head of the Cleansing and Solid Waste unit and head of special projects Allan Robert Abbu, and three others. The argument centred around the conflict of interest between Abbu and Ngcobo. 

Prosecutor advocate Reshma Athmaram argued that Abbu and Ngcobo were the directors of the enterprise that allegedly manipulated the DSW tender processes to ensure that the R320 million waste collection tender was awarded to their preferred four service providers. 

Athmaram also stressed the State’s role in representing the public and the necessity of raising issues pertinent to the rights to a fair trial.

“The NPA’s code of conduct calls for the prosecution to raise issues of conflicts of interest and issues of a fair trial,” said Athmaram, who was explaining why the State is objecting to Ngcobo being represented by Naidoo. 

She made examples of the evidence that was already before the court and stated that some parts of it are conflicting. 

However, Naidoo argued that there was no conflict of interest in the evidence before the court. He stated that from the onset, he and Howse worked together with their clients on a defence, and there had never been any conflict of interest.

“Not anywhere in the record that Howse and I cross-examined in a manner where Abbu distanced himself from Ngcobo. There are no conflicting versions between Abbu and Ngcobo,” Naidoo SC explained. 

He said if there was any conflict of interest, it ought to have risen by now.

Calitz said she had no instructions but confirmed that they had corroborated with Naidoo and that no conflict of interest arose between Abbu and Ngcobo. 

Judge Balton made her decision in the afternoon. “I’m not at all convinced that it would be proper for Naidoo to represent Ngcobo. Potential for the conflict of interest exists.” 

The judge said she would give more reasons for her decision on the day she delivers a verdict for the trial.

She explained the options that Ngcobo has.

Ngcobo said in the meantime, he would represent himself and would call Howse should a need arise.

Judge Balton warned him that for Howse to appear in court, he needs to be instructed by an attorney.

She said that an attorney should not come and ask for time to study the case, as that would cause delays.

She stated that she was satisfied that Ngcobo would not be prejudiced next week because there would be a trial-within-a-trial for the seizure of Sipho Nzuza’s cellphone. 

The matter will proceed on Monday.

nomonde.zondi@inl.co.za

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