The R320 million fraud case involving former eThekwini mayor Zandile Gumede is set to proceed at the Durban High Court on Tuesday morning.
Image: Doctor Ngcobo / Independent Newspapers
The Durban High Court has dismissed a bid by service provider, Omphile Thabang CC, to demand that the investigating officers' diaries and pocket books be made available to the defence in the R320 million Durban Solid Waste tender fraud case.
The service provider is one of the accused, along with former eThekwini mayor Zandile Gumede.
Last week, the court found that the demand for police officers’ pocket books, minutes of all meetings between the Specialised Commercial Crimes Unit, the National Prosecuting Authority (NPA), Integrity Forensic Solution (IFS), and the SAPS Clean Audit Task Team was unjustified and largely based on speculation.
The application was submitted by Omphile Thabang CC, owned by Bongani and Khoboso Dlomo, who are also facing charges in the tender fraud case.
It is alleged that Omphile Thabang was unlawfully awarded the tender to collect waste in eThekwini.
In their application, the couple sought all documents that could reveal how the R320 million fraud case was compiled against the accused.
The application, which was heard in January, was not presented to Judge Sharmaine Balton, the presiding officer of the main trial.
According to both the State and the defence, the application was going to expose Judge Balton to evidence before its admissibility had been determined, potentially compromising the trial.
Judge Sanele Hlatshwayo, who heard the application, noted that the State had already disclosed all necessary documents for the couple to prepare their defence.
The couple had stated that the State’s evidence constituted hearsay evidence, and there was a possibility that the documents were illegally obtained. Furthermore, they claimed that the State's documents lacked authenticity. However, Judge Hlatshwayo said the premise for the couple’s request was largely based on speculation.
The judge said he was not persuaded to compel disclosure, stating: “I find that the applicants have failed to show on a prima facie basis that the information required is relevant to their defence and that it will assist them in challenging the evidence against them.”
Crucially, Judge Hlatshwayo emphasised the risks associated with such disclosure. He noted that the requested information could expose the identity of 15 witnesses yet to testify in the main trial, as well as a whistle-blower whose tip-off to eThekwini's City Integrity and Investigations Unit (CIIU) led to the investigation.
The judge cited a shooting incident at the home of a State witness as an example of the real risk of harm and intimidation.
“The applicants did not raise anything likely to counter the identified risk,” Judge Hlatshwayo said.
He concluded that the applicants’ unrestricted access to the information posed a “real risk of harm to the witnesses concerned and dire consequences for the ends of justice and an important public interest”.
Judge Hlatshwayo ultimately determined that the couple did not require this information to challenge the State’s evidence and that their right to a fair trial would not be compromised by the non-disclosure.
The main trial is set to proceed before Judge Balton on Tuesday morning.
nomonde.zondi@inl.co.za