Durban - After being held in a cold holding cell for over a month, suspended Mhlathuze water board CEO, Mthokozisi Duze is now a free man, albeit with strict bail conditions.
Duze was freed late on Wednesday after his legal team which was led by lawyer Phila Magwaza applied to the Durban High Court to overturn the decision of the Durban commercial crimes court deny him bail, while freeing five of his co-accused.
Duze was arrested by the Hawks with five others late in August in relation to corrupt tenders issued by the Mhlathuze water board in Richards Bay where he worked.
UPDATE: The Durban high court on Wednesday this week overturned the ruling of the Durban commercial crimes and granted suspended Mhlathuze water CEO, Mthokozisi Duze bail. His bail was fixed at R50 000 and he was immediately freed after being in custody for over a month. @IOL
— Sihle Mavuso (@ZANewsFlash) October 7, 2022
Among those who were arrested and released was the water board’s chief financial officer (CFO), Babongile Mnyandu, KwaZulu-Natal Director-General, Dr Nonhlanhla Mkhize and Siphiwe Mabaso, a Hillcrest based debt collector.
Mabaso allegedly impersonated an official from the National Intelligence Agency and threatened Thabi Shange, the chairperson of the Mhlathuze water board to surrender a forensic report that implicated Duze and the others in corrupt activities.
They were granted bail at different intervals, but Duze was kept behind bars on the basis that he had a history of intimidating witnesses and whistleblowers, and could interfere with the case.
However, on Wednesday, Acting Judge C.M Mlaba overturned the ruling of the lower court and granted Duze bail of R50 000.
Duze was given five strict bail conditions pending his return to court in December:
“The appellant (Duze) shall not make any contact with any witnesses and employees of Umhlathuze water save for pending processes, and when making contact with such witnesses he must do after having notified the investigating officer.
“Not to enter the Magisterial Jurisdiction of Richards Bay (where Mhlathuze water has headquarters).
“Must not make contact with any official of the office of the Auditor General.
“Must not make contact with employees of Ngubane and Partners (an audit firm hired by Mhlathuze water to probe corruption allegations).
“Must surrender his passport to the investigating officer,” read the order of the court that freed Duze.
In seeking to set aside the ruling of the lower court, Duze’s lawyer argued that the magistrate who denied him bail was not fair.
Firstly, Duzedenied he had threatened a certain Mr Msomi via email. His argument was that when Msomi from Ngubane and Company questioned him, he wanted to object to the way he was being interrogated.
Even when Msomi took the matter to the police to lay criminal charges, the State refused to prosecute him. They argued that the magistrate had ignored that crucial decision of the state.
“Importantly, the allegations of assault or intimidation made by Mr Msomi of Ngubane & Company came to naught in that the State declined to prosecute (nolle prosequi).
“The decision not to prosecute would logically have followed an in-depth consideration of the complaint. On the face of it, this decision indicates that there was no merit in the complaint and the Appellant must get the full benefit of it.”
On the issue of attending a disciplinary hearing in Richards Bay escorted by armed bodyguards carrying AK47s, Duze said it was not meant to intimidate anyone but to protect him after he was suspended.
His lawyer argued that he even gave an undertaking that if some witnesses felt threatened, he would not bring the bodyguards to future hearings.
“The learned Magistrate incorrectly arrived at the conclusion that the Appellant’s attendance at his disciplinary enquiry, accompanied by armed security guards was an indication that he has the means to intimidate witnesses.
“There was no rational basis for the learned Magistrate’s controversial conclusion that, since the Appellant had now been charged, he has the means to intimidate witnesses,” Duze’s lawyers said in their papers.
Furthermore, Duze said the investigating officer erred when he linked him to Mabaso's attempt to strong-arm Shange to surrender the forensic report.
“This is a clear example of reckless and inaccurate facts being used in support of damning inferences against the Appellant.
“The learned magistrate wrongly accepted this evidence in concluding that the circumstantial evidence against the Appellant convincingly proves that he was part of a common purpose to intimidate the chairperson.
“The learned magistrate misdirected himself which leaves this Honourable Court at large to intervene.”
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