An application that could potentially make or break the state’s case against former Durban mayor Zandile Gumede and her co-accused in the eThekwini municipality’s R320-million solid waste corruption and fraud trial will be heard tomorrow.
In August 2022, charges were brought against Gumede and her 21 co-accused for allegedly siphoning millions from eThekwini’s coffers through Durban Solid Waste.
While the trial itself is set to resume later this month, Judge Sanele Hlatshwayo will hear an application by contractor Omphile Thabang CC and its representatives, Bongani and Khoboso Dlomo, to order the state to hand over the entire investigation docket. This includes the so-called “C clip”, the investigation diary, along with other documents.
The state claims the C clip is “missing”, a contention Ompile Thabang’s attorney, Stephen May, has likened to a child claiming “the dog ate my homework”.
“This contention is so implausible that it can be dismissed,” May said.
Though there is no absolute legal right for the defence to be given the investigation diary, a successful application could open the door for all defence teams representing the 22 accused to apply for the prosecution to be halted.
Even if the application fails, it may expose what defence teams describe as weaknesses and irregularities in both the investigation and the prosecution’s handling of the case. This could lay the groundwork for the accused to apply for a discharge at the close of the state’s case — without presenting a defence — on the basis that the state has failed to prove its case, and that the accused have suffered trial prejudice.
In his affidavit, May states: “Our clients have been prejudiced by repeated failures to make proper and timeous disclosure of material evidence by the state.
The only way to guarantee that this pattern does not persist is the full disclosure of the investigation diary, which is a complete chronological record of all work done in the case and serves as a reference in court should any aspect of the investigation process be brought into question.
“The only way to guarantee that this pattern does not persist is the full disclosure of the investigation diary, which is a complete chronological record of all work done in the case and serves as a reference in court should any aspect of the investigation process be brought into question.
“Some questions — which can only be answered through disclosure — are whether or not the investigations team had sufficient evidence to justify steps they took, such as applications for search and seizure warrants.”
May said that in 2023, two investigators had obtained permission to inspect documentary evidence stored under lock and key at the offices of the specialised commercial crimes unit at John Ross House. During the inspection, they came across a brown police docket containing a “C” section.
Given the scope of the investigation and the number of witnesses involved, May said the C section should have contained thousands of entries. Instead, it comprised a single page with just two entries.
May also challenged the integrity of the audit report compiled by Integrity Forensic Solutions (IFS), citing a report by Masama Consulting, which had found that IFS had been unlawfully appointed by the municipality’s city integrity and investigations unit (CIUU) to probe the alleged corruption.
This, he said, created “strong doubt” that the investigation was genuinely aimed at uncovering the truth, rather than being “a fee-generating exercise with a preconceived goal of justifying prosecution against the 22 accused”.
May further accused the state of “drip feeding” the defence with documents during the trial, arguing that only full disclosure of the entire docket would mitigate the prejudice suffered by his clients.
Opposing the application, investigating officer Lt-Col Willem Jacob van den Berg noted that the trial had started in August 2022, and that dozens of witnesses had already testified.
He said the documents now being sought did not constitute evidence relevant to the prosecution or necessary for the preparation of the defence. Van den Berg also described the Masama report as “irrelevant” to the criminal proceedings.
Regarding the missing C clip, he said the prosecution team only discovered in March 2024 that it had “gone missing under somewhat suspicious circumstances”, prompting the opening of a police case.
“The accountability, transparency and impartiality of the investigation can be tested when the investigating officers testify in the criminal proceedings. The defence does not need to rely on the C clip,” he said.
Van den Berg denied that the state had been drip feeding documents to the defence, though he conceded that some material was only disclosed after the trial had begun. He maintained that the defence teams had always been given time to prepare and “know the case they have to meet”.
He said neither he nor his fellow investigators would risk their careers by falsely claiming the C clip existed and then “attempting to fabricate it after the fact”.
In his final replying affidavit, May rejected the state’s explanation, saying it was “reminiscent of a child’s story that his homework, diligently done the night before, was eaten by the family dog”.
The criminal trial, before Durban High Court Judge Sharmaine Balton, is scheduled to resume on January 26.
Sunday Times
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