East London magistrate Rochel Sam on Wednesday came close to withdrawing all charges against the Mandela memorial scandal accused, for the second time in seven years, amid constant delays by the state.
Sam, who had already ruled against any further postponement during an intense court sitting, later changed her tune and referred the matter to the high court for trial on October 5.
The postponement was the 27th since the case was first enrolled in June 2014.
On Wednesday morning, state prosecutor advocate Ulrike de Klerk pleaded with the court to postpone the matter once again, to October 19, because the indictment was not ready as there was no trial date available.
She also said there was no high court readily available to host the R10m fraud and corruption trial.
This submission attracted a barrage of objections from defence teams, who felt another postponement would be unfair, costly and a miscarriage of justice against those in the dock for the past seven years.
The defence teams were unanimous in calling for Sam to deny the postponement, and instead provisionally withdraw the charges until the state was ready to proceed with trial.
The 12 accused, include former Buffalo City Metro (BCM) mayor Zukiswa Ncitha.
Appearing alongside Ncitha are her former deputy Themba Tinta, then-council speaker Luleka Simon-Ndzele, administrator Ondela Mahlangu, former BCM senior administrators Thembelani Sali and Nqaba Ludidi, and business figures Zintle Nkuhlu, Nosiphiwo Mati, Dean Fanoe and Viwe Vazi, along with their companies, and former health MEC Sindiswa Gomba, who was a councillor at BCM at the time of the alleged fraud in December 2013.
Accused number one in the matter, the ANC’s Dr WB Rubusana regional chair Pumlani Mkolo, was not in court on Wednesday.
The state told Sam that Mkolo was sickly and supposed to undergo a Covid-19 test before he could be personally served with his indictment.
They have been charged with fraud, corruption and contravening the Municipal Finance Management Act.
It is the state’s case that the accused intended to defraud BCM of R10m, and successfully transferred R5.9m under the pretence that it was meant for services around memorial service events for Mandela in December 2013.
The case started in 2014, was withdrawn by the NPA five years later, and was reinstated on the court roll in February.
While arguments on whether the matter should be postponed or withdrawn were taking place inside court, Nkuhlu, a Gauteng-based attorney, waltzed out of the court precinct smiling, after Sam had earlier withdrawn all charges against her.
Nkuhlu had been accused of pocketing R100,000 from BCM, with the state saying she had received the money because of her close relationship with Mkolo, allegedly without any work being done.
The charges, De Klerk told the court, had been withdrawn after Nkuhlu made a presentation to the NPA. But no details of the presentation were presented in court.
Outside court, NPA spokesperson advocate Mthunzi Mhaga told DispatchLIVE the presentation was confidential and thus he could not reveal the argument in her statement.
Ludidi had also made a presentation to NPA, asking for charges to be withdrawn, but was unsuccessful.
His attorney Elias Makhanya said Ludidi was initially a state witness, and they were surprised in February when he was arrested and joined the other suspects.
He said they had never been consulted or provided with evidence warranting Ludidi’s shift of status from a witness to an accused.
Makhanya said it was unconstitutional for the state to obtain a statement from his client as a witness, and later use that to incriminate him.
After prosecutor De Klerk told court that the director of public prosecutions had written to judge president Selby Mbenenge requesting a trial date and a high court be found, either in East London, Makhanda or Gqeberha, she then requested a postponement to October 19 for this to happen.
The defence teams, through attorney André Schoombee, lamented the fact that the letter to Mbenenge, had only been written on Tuesday.
Schoombee told Sam that they had been provided with seven charge sheets since the matter began in 2014, and called for the case to be withdrawn until the state “gets its house in order”.
“Many of the accused are political figures and their political lives can’t carry on as a result of these delays.
“We should also take into cognisance the vast sum of money that has been wasted as we have been patient for so long with the state,” he said.
Sam adjourned for a few minutes, came back and ruled against the postponement.
This was before De Klerk jumped in and asked for time to consult with her bosses.
She came back later and told Sam that a high court and trial date had been found in October, averting a near provisional withdrawal of the charges by a whisker.
DispatchLIVE
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