Dramatic scenes unfolded at the Durban High Court on Friday morning as the defence objected to the State’s line of questioning.

The State attempted to re-examine its witness regarding a copy of an affidavit, claiming the original could not be located in the docket of former eThekwini city manager Sipho Nzuza.

In the Durban Solid Waste (DSW) tender fraud case, the State seeks to admit cellphone data extracted from Nzuza’s phone by the police.

However, the defence objected, arguing that the police seized Nzuza’s phone under false pretences and that the seizure by members of the Hawks’ clean audit task team was unlawful.

The R320 million DSW tender case, involving charges of corruption, money laundering, and fraud, was paused on Monday to allow for the commencement of a trial-within-a-trial. Among the 22 accused in the DSW case are Nzuza and former eThekwini mayor Zandile Gumede.

During re-examination, State prosecutor advocate Reshma Athmaram attempted to question a Lieutenant Colonel regarding an affidavit he wrote on March 10, 2020. On this date, the Lieutenant Colonel had requested Nzuza’s phone, which was the same day Nzuza was arrested and applied for bail.

The unnamed officer stated that on March 10, he drafted the affidavit because Nzuza’s lawyers had brought up the issue of his phone being confiscated by the police. The officer claims Nzuza consented to the seizure of his phone for investigation, a claim Nzuza’s lawyers dispute.

During cross-examination, Advocate Griffiths Madonsela SC, head of Nzuza’s legal team, questioned the officer. The officer informed the court that the original affidavit he wrote on March 10 is missing from the docket.

Athmaram informed the court that the defence had requested the affidavit earlier this year, but it could not be found. A copy of the affidavit exists, signed by the officer, but it has not been commissioned.

On Friday, during her re-examination, Athmaram attempted to introduce the uncommissioned affidavit, but advocate Credo Mlaba, representing Nzuza, raised an objection.

“It was never the evidence of this witness that this is the statement he prepared. His evidence was that the affidavit he prepared had been misplaced,” Mlaba said. 

Mlaba’s objection led to a discussion and a comparison of notes from Thursday’s court proceedings. State prosecutors Athmaram and Adv. Viwe Notshe SC attempted to clarify what they had placed on record on Thursday concerning the affidavit, but Judge Balton stated that the language was clear and required no further explanation.

Athmaram then redirected her line of questioning, concluding her re-examination sooner than anticipated. She had informed the court on Thursday that she expected the re-examination to take two hours.

Additionally, attorney Stephen May, representing Bongani Dlomo, Khoboso Dlomo, and Omphile Thabang Projects, questioned the officer on Thursday as to why he signed the affidavit without a commissioner of oaths present.

“We normally sign and give it to the commissioner of oaths. That might be wrong,” he said. 

Advocate Paul Jogernsen, representing Nzuza’s wife, Bagcinile, questioned the officer as to why Nzuza was not informed of his right to refuse handing over his phone, and to first consult with his lawyer.

The officer responded that Nzuza’s constitutional rights had been read to him.

The DSW trial will now continue. 

nomonde.zondi@inl.co.za

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