A trial-within-a-trial to determine the admissibility of evidence obtained from former eThekwini city manager Sipho Nzuza’s cellphone in the R320 million Durban Solid Waste (DSW) fraud case has faced another delay as the Durban High Court adjourned the case to January 2026. 

The postponement is due to one of the accused citing trauma from the death of his spouse.

The State had indicated that it was at a stage in the main trial where it wished to adduce the evidence of documents downloaded from Nzuza’s cellphone. 

However, Nzuza’s lawyers have objected to the seizure of his cellphone, arguing that he did not consent to the police taking it. They contend that the police violated his rights by obtaining the phone under false pretences.

The State maintains that Nzuza voluntarily handed his cellphone and password over to the police. This disagreement resulted in a trial-within-a-trial to determine the admissibility of the evidence and the legality of the phone’s seizure.

So far, the court is aware that a warrant of arrest for Nzuza was obtained by the Hawks on March 9, 2020, and he was told to present himself at the Durban Central police station the following day with his lawyers. 

Previously, a retired Lieutenant Colonel, testifying for the State, informed the court that no search and seizure warrant was secured for Nzuza.

Instead, they relied on Section 22 of the Criminal Procedure Act to seize the cellphone. Section 22 allows the police to conduct a search and seizure without a warrant under specific conditions. 

Before the matter was adjourned last week on November 27, a captain from the Hawks had started testifying and confirmed what the retired Lieutenant Colonel said about the warrant of arrest being obtained against Nzuza. The media is prohibited from naming any witnesses. 

On Wednesday morning, the court was to continue with the captain’s evidence; however, advocate Sicelo Zungu asked for a postponement on behalf of his client, Mthokozisi Nojiyeza. 

Zungu said he received a call on Monday this week that Nojiyeza was still traumatised by the passing of his wife and he still needed to undergo certain rituals.

When the matter adjourned last week, Nojiyeza had received the tragic news that his wife had passed away. He received the news while the court had adjourned for the one-hour lunch. 

“We would like to apply for the matter to be postponed to January 26,” Zungu said. 

Advocate Reshma Athmaram, the state prosecutor, informed the court that the State was aware of Nojiyeza’s circumstances and would defer to the court’s decision.

“This was discussed in the chambers. Unfortunately, the court would have to adjourn the matter,” Judge Sharmaine Balton said. 

She warned the accused that this should not be the norm because it would prejudice the proceedings.

Judge Balton postponed the matter to January 26. This last session of 2025, which started on November 10, has been faced with multiple delays, one of which includes the withdrawal of Sandile Ngcobo’s legal representatives. 

The withdrawal was due to Ngcobo not being able to pay legal fees after his dismissal from the eThekwini Municipality. He was the deputy head of supply chain management. 

Judge Balton also announced that the first session of 2026 would be four weeks instead of five. She said all the accused had asked for more time to raise funds to pay their lawyers.  

nomonde.zondi@inl.co.za

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