A trial within a trial occurred at the Durban High Court yesterday as the State attempted to draw  evidence from a cellphone seized from the eThekwini Municipality’s former City Manager, Sipho Nzuza, in the R320 million Durban Solid Waste (DSW) tender fraud case. 

Former eThekwini Mayor Zandile Gumede, Nzuza, and 20 others are the accused in the matter. 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 tender processes.

The trial within a trial was given priority during yesterday’s proceedings as the court had to determine the admissibility of evidence obtained by investigators 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 a retired Lieutenant Colonel’s health, the main trial had to be paused to accommodate his testimony, as he was due to undergo major surgery and extensive treatment. 

“Due to his illness, it is uncertain if he will be available in the next session,” Athmaram stated. 

The media has been prohibited from naming witnesses in the matter.

Before the Lieutenant Colonel could testify, Nzuza’s lawyer, Advocate Griffiths Madonsela SC, told the court that they were 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. 

During his testimony, the Lieutenant told the court he had retired in January 2021, and was part of the  Directorate for Priority Crime Investigation (Hawks), 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 DSW tender irregularities. 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 Nzuza came to the police station with his lawyer and others 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 then 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 him and took his phone. They then went to his attorney to inform her 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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