The R320 million Durban Solid Waste fraud and corruption trial against eThekwini’s former city manager Sipho Nzuza, executive councillor Mondli Mthembu and former mayor Zandile Gumede has taken a back seat in the Durban High Court as a trial within a trial plays out. | Doctor Ngcobo/ Independent Newspapers
Durban — The National Prosecuting Authority is fighting to have the analysis of documents and electronic devices obtained through nine search and seizures in the R320 million Durban Solid Waste fraud and corruption case against eThekwini Municipality officials admitted as evidence in the trial.
Former eThekwini mayor Zandile Gumede and 21 others face several charges, including conspiracy to commit corruption, corruption, fraud, money laundering and racketeering.
The State alleges that Gumede, Mondli Mthembu (an executive councillor), Sipho Nzuza (former city manager), Robert Abbu who was the deputy head at DSW and Sandile Ngcobo the former deputy head of Supply Chain Management, as well as Nzuza’s wife Bagcinile actively associated themselves with the common purpose of manipulating the procurement process.
It’s alleged that they worked together to ensure that orders or contracts were awarded to specific suppliers, namely Ilanga LaMahlase PTY (LTD), Uzuzinekele trading 31 CC, Omphile Thabanga Projects and El Shaddai Holdings CC who are accused in the matter.
The main trial in the Durban High Court has taken a back seat as the State battles the defence for the four accused companies and their directors in a trial within a trial around search and seizures executed against their clients.
On Friday, State Prosecutor Advocate Reshma Athmaram explained that there were nine applications made for search warrants that resulted in various articles being seized, including electronic equipment, documents and files.
The trial within a trial seeks to have the court make a ruling on the validity of the search and seizure applications, as well as the search warrants based on the defence’s objection relating to the unlawfulness of the applications.
Advocate Paul Jorgenson representing Ilanga LaMahlase PTY (LTD) and Hlenga Sibisi, who is in control of the running of the company, said there were no reasonable grounds to apply for the search and seizures, adding that the magistrate who signed off on the applications had no jurisdiction.
“The magistrate failed to apply his or her mind and failed to satisfy himself/herself that the affidavit contained sufficient information on the jurisdictional facts set out in Section 21 C of the Criminal Procedure Act. It will be contended that the search warrant had no legality,” said advocate Willie Lombard, representing Zithulele Mkhize and his company, Uzuzinekele Trading 31cc.
Advocate Graham Uerr-Philips, representing Omphile Thabanga Projects, said his grounds for opposing the search and seizure evidence being used in the trial were aligned with Lombard and Jorgenson.
“All evidence seized through the warrants is inadmissible,” he said.
Advocate Donovan Moodley, representing accused Prabagaran Pariah, who is the sole member of El Shaddai Holdings CC, also aligned himself with the arguments of the other defence counsel, except on the issue of jurisdiction, which he said did not apply to his clients.
The State, in setting out to prove the validity of the search and seizures, called to the stand a member of the Hawks who was one of seven investigators with the National Clean Audit Task Team that began investigating the case in November 2018.
The witness who was a captain at the time in 2018 said that he drafted all nine search and seizure applications and these were authorised by a Durban magistrate. He said the National Clean Audit Task Team was established in July 2018 following six fraud and corruption complaints relating to the eThekwini Municipality.
He said the team arrived in Durban in August 2018 to investigate the six complaints and it was in November that they came to know of the one at hand and began investigating it.
“The Integrity Forensic Solutions had already done an investigation and collected municipal documents. We needed these documents from the service providers to compare with the evidence already before us from the municipality, and we could possibly get new evidence that could assist us complete the investigation. We were afraid that if we just went to the accused and asked for the documents and electronic devices these could be destroyed, and we decided the only reasonable way to get these was through search and seizure.”
He said from the time they began investigating up until March, they had encountered resistance from witnesses.
“Due to the sensitivity of the matter, there was already mention of intimidation and threats; that is why we decided to go the route of a search-and-seizure operation.”
The trial within a trial continues on Monday.
Meanwhile, the court is yet to decide whether is will accept a medical note handed in this week that has a State witness who is with the eThekwini’s City Integrity and Investigations Unit booked off sick until June.
In March last year the witness, began leading evidence around how the investigation into the alleged tender fraud came about, and at the time he was being cross-examined, he was booked off sick.
Sunday Tribune