Presiding over what was due to be day one of former eThekwini mayor Zandile Gumede’s multimillion-rand graft trial, Judge Charmaine Balton was forced to postpone proceedings in the Durban High Court on Monday after various co-accused were unable to afford legal representation.

Read in Daily Maverick: “‘They have no case’, says Zandile Gumede before her corruption trial begins” 

Gumede – accused number one – was arrested in May 2019 while still mayor of KwaZulu-Natal’s only metro, for her alleged role in the now notorious tender scandal, where just more than R320-million is alleged to have been siphoned by her, senior and junior ANC councillors, Durban Solid Waste employees and various companies and their representatives. 

Former eThekwini mayor Zandile Gumede appeared in the Durban High Court on Monday on charges of fraud, corruption and money laundering. (Photo: Mandla Langa)

The matter stretches back to 2016, when a 2013 contract using 27 suppliers to supplement the refuse-collection capacity of Durban Solid Waste was set to expire and needed to be renewed. Gumede’s alleged backhands were relatively slim compared with the eye-watering amounts usually associated with dodgy tenders at ANC municipalities. And according to the state’s indictment, it was likely that the additional political muscle she would garner via deciding who would benefit from contacts, served as a motive.  

Read in Daily Maverick: “Inside the 2,786-count fraud and corruption indictment against former eThekwini mayor Zandile Gumede and her co-accused”

‘Whimsical adjournments’

The former mayor – who is still a sitting member of the KwaZulu-Natal legislature – cut a sullen figure in the small, muggy courtroom, her usually wide smile hidden behind pursed lips, a frown cutting across her forehead. 

Zandile Gumede arrives at the Durban High Court on Monday. (Photo: Mandla Langa)

It was accused number nine, Bagcinile Nzuza, who first informed Judge Balton that her legal representative was not in court. Bagcinile was “struggling to raise funds”, a stand-in lawyer told the court when she eventually arrived. 

Bagcinile is the estranged wife of eThekwini’s former municipal manager, Sipho Nzuza, accused number three. The couple are separated, with Sipho being represented by Griffiths Madonsela SC. 

In response to the no-show of Bagcinile’s legal representative, Judge Balton, her voice characteristically steady, warned that she would not be entertaining adjournments for “whimsical reasons”. The court was hard pressed for time and space, she added. 

Zandile Gumede listens to proceedings in the Durban High Court on Monday. (Photo: Mandla Langa)

Accused number five, Sandile Ngcobo, was also experiencing financial difficulties, according to his attorney, Ivette Calitz. He remained an employee of the municipality, she said, and consequently did not qualify for legal aid. 

Ngcobo – who at the time of the alleged crimes was the chairperson of eThekwini’s bid adjudication committee – was previously represented by Jimmy Howse SC, arguably one of the province’s top criminal advocates. The court heard in June 2022 that Howse was struggling to obtain payment from his client. 

Ngcobo was shifted to the municipality’s disaster management unit in October 2020 to circumnavigate his bail conditions and thus remain a metro employee. 

Calitz told the court that Ngcobo currently had a Section 26 matter pending regarding his assets, and if that ruling – which was “expected any day now” – was in his favour, he would have funds for the trial. “If not, he will have to borrow the money.” 

Judge Balton, looking slightly more exasperated, told Calitz that her client would have to look at “other options”, possibly including cheaper representation. 

The court heard that accused number 13, Zithulele Mkhize, was also unable to get money together for legal fees. He was not in court, with his lawyer, Willie Lombard, having produced a medical note. 

Mkhize and his company (accused 14) are part of the allegedly corrupt service providers that acted as money launderers in the scheme, which the State contends ran for about 18 months.

Mkhize’s previous attorney withdrew earlier in 2022 because of non-payment. 

“I am only on record for today,” Lombard told the court, adding that plans were being made to secure funds for the entire trial. 

The clients of attorney Carl van der Merwe were also struggling to secure funds for the entire trial, the court heard. “But we will proceed,” Van Der Merwe told the judge. 

All of this had placed the State in a difficult position, said senior prosecutor Ashika Lucken. Prosecutors had been proactive in communicating with the defence to ensure that any “issues” were dealt with before the trial commenced, she said.  

Lucken suggested that the accused who had no money for fees seek legal aid. Judge Balton replied that if they did not qualify for legal aid, the State would have to assist in making plans for representation. 

Former eThekwini mayor Zandile Gumede in the Durban High Court on Monday. (Photo: Des Erasmus)

It was eventually decided that another pre-trial conference would be set for 27 July, at which further updates regarding payment and representation would be discussed. The accused would not be needed at this meeting. The date of 1 August was decided upon for the continuation of the actual matter, and proceedings were adjourned. 

According to the State’s indictment, so brazen were the backhands that the lead contractors made several electronic bank transfers directly to the bank accounts of Gumede and her daughter which, it is alleged, paid for items that included bricks for the former mayor’s home, trips to the optometrist, vehicle repairs and R48,650 in airtime for Gumede’s cellphone.

A further R150,000 had been paid by contractor Illanga (accused 12) to Selby Gumede, who the State claims was linked to Zandile Gumede’s eponymous foundation, and another R100,000 had been transferred by three of Gumede’s co-accused into the Standard Bank account of the ANC eThekwini Region “in favour of Gumede”.

Together, the 22 accused face charges that include fraud, fraud by omission and corruption, as well as contravention of the Municipal Financial Management Act, the Prevention and Combating of Corrupt Activities Act, the Organised Crime Act and the Local Government Municipal Act. 

All of the accused remain free on bail of varying amounts. DM