After three years of jumping through legal hoops, the Durban Solid Waste tender scam case, in which former Durban mayor Zandile Gumede is the alleged mastermind, will be back in court tomorrow.
However, the actual trial when witnesses take the stand, was likely to happen in the new year, said Judge Sharmaine Balton during a pre-trial conference at the Durban High Court this week.
During the current session of court sittings, which ends on August 31, Balton will attempt to put to bed all the preliminary processes, including the reading of the State’s lengthy indictment document, objections to charges and pleadings.
More than 2 700 mainly fraud, corruption and racketeering charges are pinned to this matter, which has Gumede painted as the linchpin of a cartel that scooped more than R320 million from the municipality’s coffers.
The State claimed that four chosen companies collectively received in excess of R320 million for removing illegal dumping deposits from townships between December 2017 and July 2019.
Some money was directed to high-ranking city officials, employees and their family members, councillors, and contractors, who then funnelled money to business forums and other entities.
Gumede, who is among the 22 accused in the matter, was arrested in May 2019.
Balton also expects her decision to block video recordings and photographs in court to be challenged by some media houses, who had previously argued the matter had huge public interest.
She said, going forward, she wouldn’t allow any further “games” to prevent the trial from turning into a “circus” due to the various requests for adjournments, changes in legal teams and unpaid fees.
On Wednesday, Balton enquired about the respective legal representatives’ state of readiness.
Advocate Jay Naidoo, who represents Gumede and five other accused, said: “I’m ready to proceed.”
Advocate Ivette Calitz, representing Sandile Ngcobo, the city’s deputy director of supply chain management, said her client had secured additional funds, but not sufficient to afford full counsel.
Well-known local criminal lawyer, advocate Jimmy Howse was part of Ngcobo’s legal team.
Calitz said they were awaiting judgment in a matter regarding the seizing of Ngcobo’s assets by the National Prosecution Authority’s Asset Forfeiture Unit.
She requested assistance for a portion of Ngcobo’s funds to be released.
“If a portion of the funds (R1.8m or even R1m) is released then we could proceed. It is ‘clean funds’, as it was not linked to any allegations of crime,” she said.
Calitz explained the money stemmed from a bond Ngcobo raised on his Kingsway property to purchase a farm, but the deal fell through and the funds remained in his bank account when the AFU swooped in.
She said another option was to engage cheaper counsel, but that would set them back both financially and time-wise.
“I am ready, but my client also wants Mr Howse on board. Therefore, we require an adjournment,” Calitz appealed.
Balton said further adjournments will prejudice the other defendants, who were ready, and the State. She emphasised the matter was likely to last more than two years. Therefore, they needed to move forward.
Attorney Rick Ramouthar said he was back representing Zithulele Mkhize and the company Uzuzinekele Trading 31CC.
Ramouthar said his clients had sourced external funds and that the counsel he had engaged was not yet ready.
Balton said: “Then engage someone else. We cannot adjourn this matter forever. Are we going to have this game all the time? I don’t want a circus going on here. Your counsel needs to burn the midnight oil to be ready.”
The judge also suggested the same to advocate Maphisa Mlambo, who was recently engaged to represent Bagcinile Cynthia Nzuza, the wife of former eThekwini city manager, Sipho, also an accused in the matter.
Balton said Bagcinile Nzuza had chopped and changed her legal team already.
“This is not going to be over-indulged,” said Balton.
Attorney Carl van der Merwe, representing Bongani and Khoboso Dlomo and Omphile Thabang Projects, said he was ready for the session, but would be objecting to charges against his clients.
“Most of the charges relate to racketeering, we don't have particulars from the State to prepare our case,” said Van der Merwe.
Balton suggested he ask for particulars in writing and decisions will be made in the new week.
She also said objections will be handled before the pleadings.
Advocate Ashika Lucken, representing the State, said: “We are ready to proceed. I confirm the nature of the evidence the State intends to present is extremely voluminous and in excess of 300 000 pages of documents. It includes the audit report, indictment and the request and replies for further particulars.”
Balton asked all legal representatives to attend with their diaries tomorrow for planning purposes.
She said the charges must first be read before the accused pleaded to each charge, and was mindful it would take a substantial amount of time.
“I don’t want irregularities,” she said.
About cameras in the court, Balton said her main concern was the security of everyone in court.
“Suddenly the public will be deciding the matter. With everyone being on TV, performances are changed and witnesses become afraid,” she said.
SUNDAY TRIBUNE