Stymied media get nowhere in court over ban in Zandile Gumede corruption trial

An attempt by media houses to negotiate with the state regarding the “lockdown” of the corruption trial of former eThekwini mayor Zandile Gumede and 21 others has come to naught.

A letter sent by lawyers for e.Sat, e.tv, Newzroom Afrika and the SABC late last week, proposing a settlement, was not responded to, advocate Max Du Plessis said in argument before Durban high court judge Sharmaine Balton on Tuesday.

In November 2022, after an application by the television stations, Balton issued an order allowing the proceedings to be televised live.

However, in July, that changed. At the instigation of the prosecutors, Balton banned television cameras, banned the public and banned journalists from taking cellphones, laptops or any recording devices, which are the tools of their trade, into the courtroom.

She ruled that witnesses in a “thread” — all municipal employees — could not be named or identified.

This was as a result of an alleged shooting that took place at the house of one witness, which resulted in the prosecutors submitting that witnesses were scared to testify.

The media was not consulted or given notice of this.

The ban, Du Plessis argued in an application to reverse the order, went against the principle of “open justice” and the audi alteram partem (let the other side be heard) rule.

“The media house obtained a court order in November. This was changed without notice to them. It was a decision taken in their absence and that is a violation of constitutional principles,” he submitted.

He said the trial involved public officials, politicians and allegations of corruption, which was endemic in SA. 

“The case is one of public interest which justifies the open justice principle.”

Du Plessis also argued the limitations would do little to protect the witnesses, who were named during the proceedings and were testifying in front of the accused. He used several legal precedents to make his point, including that open justice and audiovisual recordings were now accepted as the default position.

He said on Monday the Constitutional Court had again made it “perfectly clear that you don’t bring cases on an ex parte (with notice to the other side) basis when they affect others’ rights”.

The draft order, which was sent to the prosecutors, suggested the July order be set aside. 

It further suggested that should the state wish to depart from the original November order it could make application to do so with evidence under oath from the witness concerned.

That application must be served on the media legal representatives. Any objections could be heard in chambers and, if not resolved, the judge could make any relevant order. The time frame for this would be six days.

Advocate Vishalan Naidu, for the state, said this would turn the already “marathon trial” into an ultra marathon. He argued the limitations were not severe, “that the door is still open to the media” and, given the July ruling, the witnesses had an expectation of protection.

But Du Plessis said these were “quibbles” and could have been addressed without a court hearing if the state had responded to the draft order suggested.

The trial is set to resume on Monday. 

Balton said she would need time to prepare her judgment. In the meantime, the July order would remain in place.

Afterwards she called the legal representatives into her chambers. It is understood that she asked them to attempt to negotiate a settlement.

Mr A, a senior official in the municipality, is expected to be back on the witness box.

Gumede is alleged to be the kingpin of the racketeering “enterprise” in a corrupt R320m Durban Solid Waste tender.

The state alleges Gumede and others manipulated the award of the contract to four companies to promote radical economic transformation and give kickbacks to a “patronage network” that included community-based contractors, business forums and the Umkhonto we Sizwe Military Veterans Association, who were aligned to the RET faction in the ANC.

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