Nonhlanhla Mkhize, the director-general in the office of the KwaZulu-Natal premier, has failed in her bid to stand trial separately on charges relating to the alleged embezzlement of R37m from the Mhlathuze Water board.
Mkhize, who is charged with 14 others on the indictment, allegedly sent one of the other accused, Siphiwe Mabaso, to the home of water board chairperson Thabi Shange and threatened her, which resulted in her giving him a forensic report that implicated then CEO Mthokozisi Duze and attorney Ralph Mhlanga in tender fraud.
The indictment details some 280 counts of corruption, fraud, theft, forgery, money laundering, defeating the ends of justice, intimidation and contraventions of the Public Finance Management Act.
Mkhize, in an application which came before Durban high court judge Peter Olsen, claimed she was entitled to be tried alone, because she was not implicated in most of the charges.
In his ruling, in which he dismissed her application, Olsen noted that none of the counts was raised against all of the accused and almost all arose from or were connected with a series of payments made by the water board to Mhlanga between August 2019 and July 2021.
Mkhize, he said, had been charged with three counts — intimidation, defeating the ends of justice and fraud — together with three other accused.
He said she was implicated in extracting a copy of the forensic report from the chairperson who was the only person who had a copy of it, “so that it could be provided to and for the benefit of at least the principal accused who might use it to their advantage”.
The state alleges she telephoned Shange and asked her to meet Mabaso at her home as he was an “intelligence officer” who was investigating wrongdoing in public entities in general.
When Mabaso arrived, he threatened and intimidated Shange and left with the report.
Olsen said given that Duze and Mhlanga were charged along with Mkhize and Mabaso in relation to this, “one assumes that it is the state’s case that at least they received a copy of the forensic report which had been extracted from the chairperson”.
Mkhize submitted that cases such as these take a long time to finalise — two years at least.
The state intends to prove that the intention in securing a copy of the forensic report was to enable or assist others to evade liability for their crimes
— Judge Peter Olsen
She said that less than one percent of documentary evidence related to her and the allegations against her and that one, perhaps two, witnesses would testify against her in the trial.
She could not afford to retain lawyers to represent her throughout a lengthy trial, and given her employment situation, she did not qualify for legal aid.
Mkhize continues to be employed in the premier’s office on a senior official’s salary.
Olsen said there was merit in her assessment of her predicament — but her application for a separation of trial was premature.
“The decision as to whether more than one accused should be tried together on any charge is that of the prosecuting authority in the first instance. The same goes for the content of the indictment. In my view, it is fair to say that until the accused persons have pleaded, the indictment is the prosecution’s,” Olsen said in his recent ruling.
He said this was because the prosecution could amend the indictment at any time before the accused plead.
While the Criminal Procedure Act provided for a separation of trials, this could only be granted “during the trial”, in other words by the judge hearing the trial after the accused had pleaded.
Olsen said further that the indictment had subsequently been amended, “and as it turns out this case provides an example of what can go wrong if premature applications for separations of trials are permitted”.
Mkhize and Mabaso were now included in a new charge of being accessories after the fact to fraud and theft. He said while the formation of the new charge was “poor”, its essence and object was clear enough.
“The state intends to prove that the intention in securing a copy of the forensic report was to enable or assist others to evade liability for their crimes.”
Success on this charge was dependent on proving that the principal accused were guilty, said Olsen.
“In these circumstances, separating the trial of [Mkhize] from that of the principal accused will place upon the state a duty of leading all of the evidence on the principal charges twice over.”
This would be a burden on the public purse, he said.
While Mkhize’s lawyers had argued that he should simply adjourn her application for it to be dealt with by the judge hearing the eventual trial, Olsen said: “I do not think allowing such an application to survive sends the correct message.
“The state has already been put to unnecessary expense and judicial resources have been expended unnecessarily.”
Mkhize and her co-accused will appear in court again on January 23 for a pretrial conference.
Former water and sanitation minister Senzo Mchunu disestablished Mhlatuze Water in June 2023 and all staff, assets and liabilities were transferred to uMngeni Water, which was renamed uMngeni-uThukela Water in July 2023.
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