The defense counsel of the former mayor of eThekwini Municipality Zandile Gumede has described the investigation of a forensic company that investigated Gumede and 21 others as a fruit from a poisonous tree.
The accused are charged with numerous counts which include money laundering, racketeering, fraud, corruption, and contravention of the Municipal Finance Management Act and the Municipal Systems Act relating to the Durban Solid Waste (DSW) tender.
Advocate Jay Naidoo, counsel for Gumede, said this on Friday at the Durban High Court during the hearing where he is requesting the State to provide a report from Masama Consulting and annexures to the defence so they could be used to cross-examine key State witnesses, some of whom are former senior officials of the City Integrity and Investigation Unit (CIIU), who have already testified.
CIIU is the investigation unit in the municipality.
He said the Masama report found that the appointment of the Integrity Forensic Solutions CC by the CIIU was unlawful. IFS investigated this matter and it was handed over to the Hawks.
“A CIIU investigator was dismissed as a result of the Masama report,” he added.
In its response, the State said it did not have this report and that it was not relevant to this case.
Naidoo criticised the State’s response, saying that their request is directly linked to the evidence that has been led in court and that would be led. He said this report was a public document.
“You must know the contents to make that finding,” he said.
He said Section 35(3)(a) of the Bill of Rights entitles the accused to their right to be informed of their charges with sufficient detail to answer it. He said if the court refuses their request it would be violating the rights of the accused to a fair trial.
Naidoo added that the State can go to the municipality to get this report. “If the municipality refuses to make the report available, certain legal steps can be taken by the State.”
Senior counsel appointed by the National Prosecuting Authority (NPA), advocate Viwe Notshe, maintained that the report was not relevant to this case. He said this application is opposed by the State.
“We don't want the court to waste time with this.”
Notshe said the documents were inadmissible given the lack of relevance.
“The application should also fail because the information and the documents sought by the accused are irrelevant to the charges as contained in the indictment,” he added.
Additionally, he said the allegations made by the accused as to the contents and conclusions in the Masama report constitute inadmissible hearsay evidence.
Judge Sharmaine Balton reserved her judgment for a date that is yet to be confirmed.
The trial will continue in May.