A retired police officer, who is alleged by the defence to have illegally seized the cellphone of eThekwini’s former city manager, Sipho Nzuza, told the Durban High Court on Tuesday that it was urgent and that he did not know where Nzuza’s attorney was when he took the phone for investigation.

Nzuza’s cellphone was taken by the police on March 10, 2020, after he was requested to present himself and his lawyers at the Durban Central police station.

Nzuza was requested to come to the police station as there was a warrant of arrest for him regarding the R320 million Durban Solid Waste (DSW) tender fraud case.

Nzuza is charged with former eThekwini mayor Zandile Gumede and 20 others. They face multiple counts of fraud relating to the DSW tender. 

The DSW case was paused on Monday to allow the trial-within-a-trial to continue. The State wants evidence obtained from Nzuza’s phone to be admitted as evidence in the DSW matter. 

The police officer on the stand was a Lieutenant Colonel who was part of the team that arrested Nzuza. The media is prohibited from naming him.

He has told the court that he is the one who requested Nzuza to hand in his phone for investigations while he was in the police station’s holding cells. 

According to the Lieutenant Colonel, on March 10, Nzuza arrived with his attorney, who cannot be named, and others at the police station. He was arrested, and his warning statement was taken, while his lawyer was there. He was going to apply for bail the same day.

He said that while Nzuza was in the cells, he observed him on his cellphone, and that is when he asked for it so that it could be taken to Digital Forensic Investigations (DFI).

He said that during this time, he did not know where Nzuza’s attorney was. However, he stated that she was in the vicinity. 

Advocate Griffiths Madonsela SC, representing Nzuza, asked why the Lieutenant Colonel did not request Nzuza’s phone when his warning statement was taken, as his lawyer was there. 

“I did not know he had a cellphone with him,” the Lieutenant Colonel replied. 

He said that if he had known, he would have requested it at that time. “You would have done so because it would have been necessary for Nzuza to confer with his attorney?” Madonsela asked. 

The Lieutenant Colonel said yes.

Madonsela asked him if he did not find it necessary to call Nzuza’s attorney, as she was in the vicinity, so he could request the phone in her presence. 

“At the time and due to the urgency, I did not think it was necessary,” Lieutenant Colonel responded. 

“I put it to you that you did not do so because she (the attorney) was not there. She had gone to court,” Madonsela said. 

Lieutenant Colonel replied by saying that it is a fact he disputes. He said the attorney was there, and that is why, after they got the phone from Nzuza with his colleague, they went to her. He said the attorney did not object to the seizure of the phone, and she even gave them her business card. 

However, Madonsela handed over to the court the notes that were taken by the attorney during the bail proceedings. He also handed a transcript of the proceedings, where they raised the issue of Nzuza’s phone being taken by the police. He took the witness through the notes and transcripts. 

They both agreed that the attorney’s notes are the same as the transcript. Both reflected when the objection was raised about the seizure of the phone.

In her notes, the attorney wrote when she found out about the seizure of Nzuza’s phone. Additionally, in the transcript, the magistrate questioned why a warrant for search and seizure was not obtained. 

The trial-within-a-trial continues. 

nomonde.zondi@inl.co.za

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