Advocate Credo Mlaba and his client, former eThekwini city manager, Sipho Nzuza.
Image: Nomonde Zondi
A Hawks Captain revealed to the Durban High Court on Friday morning that former eThekwini city manager Sipho Nzuza was not searched upon his arrest and detention at the Durban Central police station due to his high-profile position.
This failure to search him resulted in Nzuza entering the holding cells with his cellphone, a contravention of police policy, as the officer conceded.
The State is seeking to admit evidence obtained from Nzuza’s cellphone, which police seized while he was in custody. The police maintain that they asked Nzuza for permission to take his phone for downloading and mirroring to the Digital Forensic Investigations.
However, Nzuza disputes this, claiming police told him they were taking the phone for safekeeping and never asked for his consent to download data. His lawyers argue that the evidence obtained from the cellphone cannot be used in court because it was unlawfully obtained.
Captain Obed Lukhele, part of the investigating team for the R320 million Durban Solid Waste (DSW) tender irregularities, testified that he was instructed to take Nzuza’s phone.
Nzuza had handed himself over to the police, accompanied by his lawyers, on March 10, 2020, and subsequently made his first court appearance at the Durban Magistrate's Court.
Captain Lukhele confirmed that he read Nzuza his constitutional rights when charging him with more than 2000 charges of fraud, corruption, and racketeering related to the DSW tender. Nzuza is charged alongside former eThekwini mayor Zandile Gumede and 20 others.
“When you took him to the holding cells, did you search him?” State advocate Reshma Athmaram asked.
Lukhele replied by stating that he told Nzuza to hand over any valuables, as they are not allowed inside the cells.
“I did not physically search him. I said if he has anything valuable, including a watch, belt, and shoelaces, he can leave them,” the Captain explained.
He acknowledged knowing the SAPS policy requiring an accused to be searched, but explained: “With Nzuza, it was different because we had arranged for him to come to us. Because of his position as city manager, he was not searched.”
Captain Lukhele explained the cellphone seizure, saying his superior, a Lieutenant Colonel, loudly instructed him to take Nzuza’s phone for downloading, a directive Lukhele claimed Nzuza overheard. The Captain said he did not explain to Nzuza why he was taking his phone.
“I said, Mr Nzuza, as you heard what my senior had said, may I please have your cellphone. He asked why I wanted his phone. I told him it was for downloading,” Lukhele testified.
Lukhele asserted that if the purpose was safekeeping, he would not have asked for the phone’s PIN.
He also maintained that he would have seized the phone without Nzuza’s consent, as cellphones are prohibited in the cells.
Furthermore, he noted that if Nzuza had expressed discomfort and requested his attorney, he would have called her, as she was not far from the holding cells area and she was standing with his superiors.
Cross-examination by Nzuza’s lawyer is scheduled to begin on Monday.