An affidavit written by a Lieutenant Colonel detailing how the cellphone of eThekwini’s former City Manager was seized for investigation cannot be located in the docket. This was revealed at the Durban High Court on Thursday morning during a trial-within-a-trial in the R320 million Durban Solid Waste (DSW) tender fraud case. 

The State wants the cellphone data obtained from Nzuza’s phone to be admitted as evidence in the case but Nzuza’s defence is objecting to this, saying that his phone was taken under false pretences and he did not consent to it being taken for investigation. 

The DSW case involves Zandile Gumede, a former Mayor of the eThekwini Municipality, Nzuza, and 20 others. They face multiple charges of fraud, corruption, and money laundering related to the tender. 

During cross-examination, a retired Lieutenant Colonel from the Hawks was asked by Nzuza’s lawyer, Advocate Griffiths Madonsela SC, why he made an affidavit a year later, after Nzuza complained to the Hawks about his phone being seized without his consent. 

“I only responded after I was contacted by an officer from the DPCI (Directorate for Priority Crime Investigation),” he said. 

The Lieutenant Colonel, who cannot be named, explained that shortly after the court proceedings on March 10, 2020, the day Nzuza applied for bail, he wrote an affidavit after he had verbally requested Nzuza’s phone for investigation. 

“I then submitted an affidavit for filing into the docket to the investigating team. I have learned that the affidavit cannot be found in the docket,” he explained. 

“Did you keep a copy of that affidavit?” Madonsela asked. 

The Lieutenant Colonel replied, no. Prosecutor Reshma Athmaram said the request for the affidavit was made earlier this year in preparation for the trial-within-a-trial, and they have not been able to find it. However, she indicated that a copy of the affidavit was in one of the exhibits that Madonsela handed in and that it is signed but was never commissioned by a commissioner of oaths. 

Madonsela asked the Lieutenant Colonel if he knew who extracted information from Nzuza’s phone, suggesting that it was one of the officers at Digital Forensic Investigations (DFI). 

He asked him if he was aware that information extracted by DFI contained Nzuza’s personal messages. 

“No, I am not aware of that,” the Lieutenant Colonel replied. 

Madonsela asked the officer if he was aware of the Protection of Personal Information Act (POPIA Act) and the officer said he was.

“Do you accept that the private information extracted from Nzuza’s phone is protected under the POPIA Act?” Madonsela asked.

The officer said, “Yes.” 

The Lieutenant Colonel said that when he asked for Nzuza’s phone, he had no independent evidence that he used his phone to commit a crime. He said he only relied on the discussion with his team and the decision to request Nzuza’s phone was taken by him alone; it was not communicated with the team.

The trial-within-a-trial continues. 

nomonde.zondi@inl.co.za

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