Advocate Griffiths Madonsela SC leads the legal team of former eThekwini city manager, Sipho Nzuza.
Image: Nomonde Zondi
Emotions ran high at the Durban High Court on Wednesday afternoon as the legal team for the former eThekwini city manager, Sipho Nzuza, threatened to withdraw from the R320 million fraud case.
The threat followed the prosecution’s delivery of a key witness statement only 30 minutes before the witness was due to testify.
The witness in question is a member of the Hawks investigating team responsible for the arrest of Nzuza, along with former eThekwini mayor Zandile Gumede and 20 others. They face charges of corruption, money laundering, and racketeering related to the R320 million Durban Solid Waste tender.
The morning began with the expectation that Lieutenant Colonel van den Berg, the Hawks member, would start his testimony, as he had been seen in court. However, a different witness from Digital Forensic Investigations began her testimony.
The legal team of Sipho Nzuza threatened to withdraw from the fraud case after the prosecution gave them little time to read a witness statement. Standing next to Nzuza is his lawyer, advocate Credo Mlaba.
Image: Nomonde Zondi
Corridor talk suggested Van den Berg was initially slated to testify but had to prepare a statement on Wednesday morning first, as he had not made one. As a result, the Afrikaans interpreter, who was present and prepared to assist Van den Berg, was instructed to return after the lunch adjournment.
When the matter resumed after a one-hour lunch, State advocate Reshma Athmaram informed the court that a copy of Van den Berg’s statement had been emailed to all counsel during lunchtime.
However, Advocate Griffiths Madonsela SC, leading Nzuza’s legal team, objected vehemently. He stated that they had only received the statement at 13:12, during the one-hour lunch break. Unable to access his emails in court, Madonsela had to review the statement on co-counsel Advocate Credo Mlaba’s cellphone. Mlaba is part of Nzuza’s legal team.
Madonsela revealed that Athmaram had approached him that morning, admitting: “I have just realised that the witness I am intending to call has no statement.”
The senior counsel asked for an adjournment to properly review the statement, consult with Nzuza, and consult with the attorney, who accompanied Nzuza during his arrest at the Durban Central police station in March 2020.
“We need to determine whether the evidence can be objected to before it even comes before you, my lady,” Madonsela asserted.
Throughout Madonsela’s submissions, Judge Sharmaine Balton interjected, at one point stressing that the court had reconvened at 14:15 specifically to allow Madonsela’s team to look at the statement, and that she did not want to waste any time.
Madonsela countered that the discovery in the case had been made three years ago, and Van den Berg's statement had never been provided. He reiterated that the prosecution had confirmed that morning that there was no statement.
“If we are compelled to proceed without being given an opportunity to go through the statement, we will be compelled to withdraw from this case,” Madonsela warned the court.
Judge Balton responded sharply to the defence’s stance, saying: “Thank you for your threats Mr Madonsela.”
Madonsela emphasised the seriousness of the charges Nzuza faced and highlighted that the reputation of Nzuza’s attorney was being impugned. This stems from the Hawks' claims that the attorney did not object when Nzuza’s cellphone was seized without a warrant, and that Nzuza voluntarily surrendered his phone for mirror imaging.
Athmaram, appointed by the National Prosecuting Authority, admitted that the late delivery was an oversight on the prosecution’s part, but insisted there was nothing new in Van den Berg’s statement.
She added that Nzuza's attorney had put herself in the arena by being a witness and argued the defence had never informed the State that they lacked Van den Berg’s statement.
“They were not going to realise that there was no statement; we could have called our witness,” Athmaram contended.
Judge Balton, however, did not condone Madonsela’s attitude, but strongly criticised the State’s conduct. “The fact that you are going to call a witness, there should have been a statement,” she stated.
Ultimately, Judge Balton granted Madonsela the requested time to go through the statement and postponed the matter to Thursday morning.