AGE OF ACCOUNTABILITY
Zandile Gumede and co-accused corruption trial delayed again as defence attorney bows out
The highly anticipated trial on Monday did not get much traction before it was postponed once again. Now it is unlikely that the matter will come to trial this year. The bulk of Monday’s sitting was taken up by media access — or lack of it — a consistent gripe amongst journalists since the matter first sat in the regional court in 2020.
A senior attorney representing three co-accused in the R320-million fraud, corruption and racketeering case of former eThekwini mayor Zandile Gumede withdrew from the matter on Monday 1 August because his clients could not afford to pay him for the duration of the impending trial, meaning the matter again had to be postponed.
The withdrawal of criminal attorney Carl Van Der Merwe was not unexpected. He had said in court on 18 July, the day the trial was supposed to start, that his clients — Bongani Dlomo, Khoboso Dlomo and their company, Omphile Thabang Projects — would be unable to fund a defence unless they reached an agreement with the Asset Forfeiture Unit to release some of their seized possessions.
On Monday, after announcing his withdrawal, Van Der Merwe suggested that his now former clients consult Legal Aid South Africa for a lawyer.
The court heard from a legal aid representative that the applicants would have to undergo a means test, and that a budget would have to be secured from the organisation’s national office — a process that could take up to two weeks.
Judge Sharmaine Balton consequently had to postpone the matter to 11 August for yet another pre-trial conference.
It is unlikely that the matter will come to trial this year, given that any new legal representative will have to be thoroughly briefed on the case, which will need to include studying the state’s 400-page indictment.
The bulk of Monday’s sitting was taken up by media access — or lack of it — a consistent gripe amongst journalists since the matter first sat in the regional court in 2020.
In December 2020, an order was made that no live video feed would be allowed in court for pre-trial proceedings. Sanef appealed that order in February 2021, and a decision on the matter is still pending.
It is understood that there is hesitancy on the side of some legal representatives for the safety of their clients, who have turned state witness.
Balton had issued a letter on 28 July (last week), the day after a closed meeting with legal representatives in the matter, saying it had been agreed that “cameras and television recordings will not be allowed in courts during the proceedings”. No reasons were given.
The letter had been circulated to journalists via the Office of the Chief Justice, along with accreditation requirements for Monday’s sitting.
The letter prompted the South African National Editors’ Forum (Sanef) to email Balton, asking for “clarity”, but no response was received.
Sanef subsequently launched an urgent application on Sunday, requesting that the letter be set aside and that it be allowed to make an access application for live streaming and photographing of pre-trial and trial proceedings.
At the start of proceedings on Monday, before the next pre-trial date was discussed, Balton allowed defence attorneys and advocates to interact with Sanef — represented by advocate Max Du Plessis — with the hopes of coming to some sort of an agreement.
All of the legal representatives, barring one, said they would not oppose the application, with some indicating they wanted to discuss the matter with their clients.
Advocate Griffiths Madonsela, SC, told Balton that he would, in fact, “welcome” media being present. Madonsela represents accused number three, former eThekwini municipal manager, Sipho Nzuza.
It was finally decided that the media had to make representations to the court by Friday, 5 August, and that the parties in the matter would have five days to respond, after which the media could again respond. Balton will then have to issue an order.
Sanef will bring its application in terms of section 38 of the constitution in the interests of media freedom and open justice. In his affidavit on behalf of Sanef, executive director Raitlhwa Moalusi said there were three criteria that needed to be “top of mind” in a media access application.
“First, the default position should apply unless there are reasons for it not to. The default position permits media coverage. As a matter of general principle, both the nature (type of media) and scope (extent of media coverage) should not be restricted.
“Second, both the nature and scope of media access may only be restricted where the prejudice is demonstrable by any of the parties to the litigation;
“Third, the parties should show that there is a reals risk that prejudice will (not may) occur.”
The default position, said Moalusi, should be one that favours open justice and permits broadcast access.
According to the state’s indictment, Gumede received R2,881,350 in kickbacks between January 2017 and July 2019 for ensuring that pre-determined businesses benefitted from the eThekwini’s waste contracts.
She is accused of colluding with her co-accused to ensure that businesses and business forums that are associated with the ANC’s so called-Radical Economic Transformation (RET) faction received winning waste contract bids to ensure they supported her political ambitions when called on.
Together, the accused are facing 2,793 different counts on charges that include racketeering, fraud, fraud by omission, corruption, contravention of the Municipal Finance 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 Systems Act.
Gumede is alleged to have received direct electronic payments to her bank account and to the bank account of her daughter. The ANC eThekwini region is also alleged to have received a donation of R100,000 from three of Gumede’s co-accused.
All of the accused are free on bail of varying amounts. DM