A Hawks captain has informed the Durban High Court that former eThekwini city manager, Sipho Nzuza, raised no objections when asked by police to surrender his cellphone for downloading at Digital Forensic Investigation.
However, Nzuza, who is charged alongside former eThekwini mayor Zandile Gumede and 20 others in the R320 million Durban Solid Waste (DSW) tender fraud trial, claims the police seized his phone under false pretences and unlawfully obtained the evidence.
However, the police maintain that Nzuza consented to the seizure and downloading of the phone’s contents.
This dispute has resulted in a trial-within-a-trial to determine the admissibility of the evidence that was obtained from Nzuza’s phone by the Hawks (Directorate for Priority Crime Investigation).
On Tuesday morning, Hawks Captain Obed December Lukhele testified that Nzuza did not object when asked to hand over his cellphone for downloading.
Captain Lukhele explained that he seized the phone on the instructions of a senior colleague, a former Lieutenant Colonel. He said this instruction was given in the presence of Nzuza’s attorney and the investigating officer of the case. He said Nzuza’s attorney did not object to this.
Lukhele stated that he informed Nzuza, who asked why his phone was needed, that the purpose was to download. He said when Nzuza gave him his phone, he did not ask to speak to his attorney.
When State advocate Reshma Athmaram asked Lukhele why he told Nzuza that he wanted his phone for downloading, Lukhele clarified that it was because of the instruction that his senior colleague gave him.
“I forgot to mention that when the Lieutenant Colonel shouted my name and requested that I take Nzuza’s phone, he said it was for downloading,” Captain Lukhele said.
According to Lukhele, Nzuza initially provided the phone and a PIN. However, the PIN was incorrect, a detail Lukhele only realised at the charge office when attempting to switch off the continuously ringing phone to place it on the SAP13 register.
Lukhele returned to the holding cells area where Nzuza was and asked for the correct PIN. Nzuza admitted he made a mistake and provided the correct one.
Crucially, Captain Lukhele testified that Nzuza’s attorney was next to his senior colleague when the instruction to seize the phone was given to him and further stated that no objections were raised by Nzuza’s attorney.
The trial-within-a-trial continues.
nomonde.zondi@inl.co.za
