Cellphone seizure takes centre stage in Durban’s R320 million fraud trial
A police officer who was part of the investigating team in the R320 million Durban Solid Waste (DSW) fraud case told the Durban High Court earlier this week that he was one of the investigators that seized the cellphone of former eThekwini City Manager Sipho Nzuza.
Nzuza is charged alongside Zandile Gumede, the former eThekwini mayor and 20 others. They are currently on trial for money laundering, corruption and contraventions of both the Municipal Finance Management Act and the Municipal Systems Act relating to the DSW tender.
The main trial has been temporarily halted for a trial-within-a-trial to proceed. It is to determine the admissibility of evidence obtained from Nzuza’s cellphone. The State intends to use this evidence, but Nzuza’s legal team is challenging its inclusion, arguing that the phone was seized unlawfully and under false pretences.
Before the police Captain from the Hawks could start with his testimony, the defence and the State had arguments about who has the onus and duty to start leading evidence in the trial-within-a-trial.
In August the State was forced to call one of its witnesses, a Lieutenant Colonel who is now retired. The Lt. Colonel had to be called in as his availability was uncertain as he was due to undergo a major surgery and be on extensive medication.
During arguments earlier this week State prosecutor Advocate Reshma Athmaram said the onus lay with the defence as it alleges that the constitutional rights of Nzuza were violated. She said Nzuza would have to prove the existence of the constitutional right and the breach by the State.
“The handing over of the cellphone was freely and voluntarily made to the police. State would lead evidence that Nzuza’s attorney was present at all times and Nzuza had been fully appraised of his constitutional rights,” she explained.
However, Nzuza’s lawyer advocate Griffiths Madonsela SC, said the onus lay with the State to lead its witnesses, “In justification, it has begun doing so anyway.”
Madonsela argued that the case law cited by the State was irrelevant to the current proceedings, urging the court instead to rely on S vs Murphy. He emphasized that the court’s findings in the Murphy case clearly establish that the State bears both the onus and the duty to justify any warrantless search and seizure.
He pointed out that the State’s reliance on Section 22 of the Criminal Procedure Act (CPA) – which permits a warrantless search if a person consents to it – also arose in the Murphy case.
Madonsela quoted the court findings, which cautioned police against misusing Section 22 to create a false sense of urgency when seeking consent to search.
Judge Sharmaine Balton ruled in favour of Madonsela. “Having heard the arguments, the onus is on the State,” she said.
The Hawks Captain, who cannot be named, testified that Nzuza was informed of a warrant of arrest by his colleague on March 9, 2020, and was instructed to present himself at the Durban Central police station at 7am on March 10, 2020.
The Captain stated that his role that day was to register Nzuza on SAP14 and escort him to the cells. He confirmed that Nzuza was formally arrested in the presence of his lawyers, noting that Nzuza’s attorney was present throughout, although he couldn’t recall if she posed any questions.
The Captain’s testimony is scheduled to resume on December 3. This postponement follows Judge Balton’s decision to adjourn the matter on Monday after one of the accused, Mthokozisi Nojiyeza, received news of his wife’s death.
