The lead prosecutor in the R430-million Durban Solid Waste (DSW) graft case involving former eThekwini mayor Zandile Gumede, city manager Sipho Nzuza, Nzuza’s wife, senior councillor Mondli Mthembu, officials and service providers, asked a Durban Magistrates’ Court on Thursday for almost four months’ grace to catalogue and digitise a mass of documents before handover, much to the annoyance of the defence. 

Senior prosecutor Ashika Lucken further told magistrate Dawn Somaroo that only once all of the documents had been compiled and digitally collated, would a preliminary indictment be made available. Lucken asked the court for 3½ months to get the documents in order. 

The audit report in the case consisted of 741 pages, she said, which had to be read together with 245 lever arch files. These would form part of the annexures and exhibits and totalled 75,000 pages. This excluded the audit report, which, Lucken said, is ready, and which she has yet to read. 

The information had to be converted to digital format and placed on to a hard drive, she said. The delay was necessary because the compilers would be on leave from 15 December to 8 January. 

Further trying to justify the delay, she outlined the process for the court. Each page had to be paginated and indexed, which was done using an “electronic device” that took only one document at a time. Even though those doing the compiling were experienced, this could take up to three weeks.

Next, the documents needed to be scanned – but only two machines were available for scanning. Each machine took up to 200 pages at a time. The scanning speed would be reliant on data and connection. 

The scanned documents then had to be placed on a master drive and “checks and balances” had to be done to ensure there were no errors. Once this was finalised, copies could be made available to the defence. 

But advocate Jay Naidoo, representing Gumede, Mthembu and accused one, DSW’s former deputy head for strategic and new developments Robert Abbu, since retired, was having none of it. 

Naidoo said Lucken was working contrary to the magistrate’s previous ruling in September. Lucken had then asked for a postponement to accommodate finalising of the audit report. Now she wanted additional time to “peruse and proofread”, he said. 

“The court indulged the prosecution with premature arrests,” he said, adding that Gumede and Mthembu had been particularly prejudiced as political office-bearers when they were arrested in 2019. 

The matter had dragged on for nearly two years, he said, and now another four months were being sought before a provisional indictment would be forthcoming. It was hard to believe the forensic report was ready, he said, implying that the time being sought by the state was necessary to complete the report. 

“If it is there in its final form, let it be discovered by us,” he said, adding that the indictment and discovery should be ready by February if a trial date was to be secured timeously. The rights of his clients needed to be taken into account, he emphasised. 

Advocate Jimmy Howse, SC, acting for the former head of eThekwini’s supply chain management and former Bid Adjudication Committee (BAC) head Sandile Ngcobo, concurred with Naidoo, calling the four months Lucken was seeking “grossly unreasonable”. 

“We know now, when police put anything into a docket they scan it into a system. The majority of exhibits should be scanned. All indexing should be done. Four months is unacceptable.” 

The forensic report should be handed over to the defence “tomorrow”, he said, adding that he had asked for it two weeks ago.

(Ngcobo, his wife, and businessman Nhlakanipho Mthembu were rearrested earlier this week for fraud and corruption relating to Ngcobo’s time heading the BAC. All three were released on R10,000 bail. Ngcobo is still employed by the city, which simply shifted his position so that he could circumnavigate his bail conditions in the DSW case. Acting city manager Sipho Cele previously told this journalist that Ngcobo was to be subjected to an internal disciplinary process. It is unclear if that has taken place.) 

Nevertheless, Lucken continued trying to push for more time, but Somaroo was adamant that anything approaching four months was simply too long. 

The magistrate eventually postponed the matter to 23 March and made it clear that by that date, full discovery would have to be made to the defence. The indictment would need to be ready and all annexures, including the police docket and other evidence, would have to be provided. 

The defence served the state with a notice of application of section 342A, set down for the return date, meaning that if the prosecution’s ducks are not aligned, the matter could be struck from the court roll.

The accused are facing charges of fraud, fraud by omission, corruption, contravention of the Municipal Financial Management Act, contravention of the Prevention and Combating of Corrupt Activities Act, contravention of the Organised Crime Act and contravention of the Local Government Municipal Act. 

Gumede and Mthembu are further facing charges for contravention of the Riotous Assemblies Act for allegedly instigating an illegal gathering during which supporters called for the axing of Nzuza, who allegedly refused to sign off on payments related to the dodgy tenders. DM