The trial in which former eThekwini mayor Zandile Gumede and 21 others are accused of racketeering, fraud, corruption and money-laundering relating to a R320m solid waste tender, will resume in the Durban high court on Monday.
However, before the next witness is called, lawyers for media organisations, including e.tv and the SABC, are expected to argue, in an urgent application, for a variation of an order granted, without the media being heard, by presiding judge Sharmaine Balton in July, which effectively put the court in “lockdown”.
Not only did judge Balton rule that a certain “thread of witnesses” — all municipal employees — cannot be named or identified in any way, she also varied a previous order, stopping the live-feed of proceedings. And she ordered that journalists cannot have their phones, laptops or other recording devices in the courtroom.
The “lockdown” was apparently sparked by an incident on Saturday, July 24, in which a shot was fired through the bedroom window of a witness set to testify the following Monday.
The ban on devices was prompted after someone reported that a clip had surfaced on social media of the proceedings.
However, it emerged that the clip was from archived footage which had been used after the ban.
Journalists, seen in an outside broadcasting van, were also accused of flouting the rules. But they were just watching the proceedings on the permitted (not broadcast) feed because of sound issues in the court.
Media interest in the trial has been waning since judge Balton’s July ruling.
In his affidavit, E.Sat TV journalist Dasen Thathiah noted the ruling had been “agreed to by the state and legal representatives of the accused”, and the media, in spite of securing a previous order allowing for the proceedings to be televised, had not been consulted at all.
He said the ruling did not strike an appropriate balance between open justice, rights to freedom of expression, access to courts and the safety and security of witnesses.
“The ruling fails to give effect to the legal principle that the media may not be excluded unless there is evidence (not speculation, conjecture or hearsay submissions from the bar) about the existence of a real and substantial risk of prejudice,” Thathiah said.
Journalists are finding it very difficult to report the news without these devices. The confiscation stops the trial from being reported ‘live’, delays the publication of the news, dilutes the accuracy of our reportage and deprives us of a means by which to conduct our journalistic endeavours.
— E.Sat TV journalist Dasen Thathiah
He said after the shooting incident, the state had indicated that an officer was going to investigate, “but it is unclear what the outcome of the investigation was or if any investigation was ever concluded”.
The trial ran, then on July 28 all the parties were advised by email of the new “agreement” regarding media access.
After that, all journalists had been compelled to hand over all devices to security before entering the courtroom. They were placed in brown paper bags and sealed.
“Journalists are finding it very difficult to report the news without these devices,” Thathiah said.
“The confiscation stops the trial from being reported ‘live’, delays the publication of the news, dilutes the accuracy of our reportage and deprives us of a means by which to conduct our journalistic endeavours.
“It has become hard to report on the trial ... many journalists have stopped attending the proceedings ... this has directly impacted the public’s right to know and to be informed of newsworthy events which are clearly in the public interest.”
He said “tools of the trade” were no longer notebooks and pens, but electronic devices. Like in the Zondo commission, the public had an interest in any proceedings that ensured public figures holding high-profile positions within government were held to account.
“The public should be able to observe and hear for themselves the court proceedings, or segments of them. That public interest — and the constitutional rights that the open justice principle protects — are not advanced by the [July] ruling.”
Thathiah said speculation of a “security risk” to witnesses was not sufficient to justify a restriction on the media and a “blanket” prohibition on reporting the evidence of an unidentified “thread of witnesses”. None of the accused has entered the fray.
They have all elected to abide by the decision of the court. But the matter is being opposed by the director of public prosecutions, who says the matter is not urgent because media representatives have been complying with the July order — and that the media are being unsympathetic to witnesses who feel intimidated.
But, Thathiah pointed out in his replying affidavit, the ruling does not protect witnesses, because their identities are known to every person present in the courtroom, “any one of whom is at liberty to identify their names and details outside the courtroom thereafter”.
He said the DPP had not made a “formal application” with notice to interested parties, but had cut short the process by a vague and speculative, factually unsupported request from the bar.
“While the media are not a party to the trial, they are the subject of the order. They were entitled to be heard.”
Regarding the contention by the DPP that cellphones were interfering with the court’s recording equipment, Thathiah said this was “nonsense” because if that was the case, the prosecutor, investigating officer and the legal representatives would also have their phones impounded.
Gumede is alleged to be the kingpin of the racketeering “enterprise”. With her in the dock are Robert Abbu, the former deputy director of strategic and new development in the department of cleansing and solid waste, former ANC senior councillor Mondli Mthembu, Sandile Ngcobo, the deputy head of supply chain management, former municipal manager Sipho Nzuza, his wife, Cynthia Nzuza, ANC councillors Mthokozisi Nojiyeza, Sduduzo Khuzwayo and Bhekokwakhe Phewa.
The other accused are Ilanga La Mahlase Pty Ltd, Uzuzinekele Trading, Omphile Thabang Projects, and El Shaddai Holdings Group and their representatives, who are accused of benefiting from the waste contract.
The state alleges that Gumede and others manipulated the award of the contract to the four companies to promote radical economic transformation and to give kickbacks to a “patronage network” which included community-based contractors (CBCs), business forums and the MKVA who were aligned to the RET faction in the ANC.
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