The legal team representing former eThekwini municipal manager Sipho Nzuza is disputing the Hawks’ version of events surrounding the seizure of his cellphone at the time of his arrest, as part of the ongoing R320-million Durban Solid Waste (DSW) tender fraud case.
A trial-within-a-trial is currently underway in the Durban High Court to determine whether data extracted from Nzuza’s phone can be used as evidence. The main trial has been paused while this question is resolved.
Nzuza is among 21 accused in the case, which also includes former eThekwini mayor Zandile Gumede. Prosecutors allege that between 2016 and 2017, procurement processes were manipulated so that contracts worth R320 million were steered toward four companies, which are also facing charges alongside the individual accused.
Central dispute: how and when was the phone taken?
Nzuza’s defence maintains that his cellphone was confiscated without a warrant, under the pretext that it was being held for safekeeping. At the heart of the current hearing is a disagreement over when Nzuza’s attorney — whose name is under a court-ordered gag — learned that the device had been taken.
The attorney, who also holds a position as an acting judge in KwaZulu-Natal’s High Court, testified that she only found out about the seizure later that day, while at the Durban Magistrates’ Court discussing bail arrangements with the prosecutor. She told the court that a Hawks officer raised the matter with her only after those bail discussions had taken place.
This directly contradicts a sworn statement from a Hawks officer claiming she had been notified immediately following the seizure. She firmly denied this version, telling the court it was simply not true, and pointed to notes she made on the day of the arrest as backing for her account — notes that, she said, would have reflected any such conversation had it actually occurred at the police station.
Bail transcript cited as supporting evidence
The defence also pointed to the transcript from Nzuza’s bail hearing to bolster their case. Per the attorney’s testimony, the presiding magistrate had characterized the alleged seizure as a serious issue once Nzuza’s legal representatives flagged concerns about its legality.
She further explained that although the defence had the option of seeking a High Court order to stop police from accessing data on the phone, doing so wasn’t practical at the time — this was because senior State advocate Ashika Lucken had assured them the device would be handed back that same afternoon.
The attorney also raised questions about why the investigating officer hadn’t informed Lucken that the phone had allegedly been seized in her presence to begin with.