Acting magistrate Gerrie Maree’s decision to release convicted fraudster Shauwn Mpisane on warning, pending the outcome of her bail hearing raised a few eyebrows at the Commercial Crime Court in Durban.
Adjourning the matter on Thursday for further argument and possible decision today, he conceded that these were somewhat “unusual” circumstances.
Maree said releasing Mpisane on warning overnight was not a contradiction because she had handed herself over to police.
The Durban businesswoman, accompanied by her husband, S’bu, reported to the Anti-Corruption Task Team offices in John Ross building, Margaret Mncadi Avenue (Victoria Embankment), where her fingerprints were taken and her rights read to her.
This came after the couple’s R80 million La Lucia home, 25 luxury vehicles and 35 work vehicles were seized by the Asset Forfeiture Unit (AFU), on Wednesday. It was alleged that Mpisane supplied false information to the Construction Industry Development Board (CIDB) for government tenders in favour of her company Zikhulise Cleaning and Transport CC, amounting to more than R140 million.
The 36-year-old pleaded not guilty to 53 counts of fraud and forgery.
The charges relate to her alleged submission of false documents relating to tax certificates, annual financial statements, declarations regarding professionals and her track record with the CIDB for tenders from the Department of Public Works.
In her affidavit read into court record by advocate, Jimmy Howse, Mpisane said the charges against her “cannot by any stretch” be measured by the monetary amount allegedly involved.
“I do not understand how the State can charge me with fraudulently obtaining a tender where the so-called complainant (Department of Public Works) is obviously happy with the performance to the extent where both parties are honouring the contract.”
Mpisane said the charges against her are “more illusory than they are real”.
She pointed out that one contract with the department of building the R21.4m Inanda Clinic was under way.
Another project valued at R69m, which she said had not commenced has been included in the sum she has been charged for.
Mpisane was also involved in two “unquestionably lawful” projects with the eThekwini and KwaDukuza municipalities totalling R658m.
The Umlazi B10 Project of low-cost houses, where work commenced in August, was valued at R482m. More than 1 000 people are employed in this project.
Zikhulise was also awarded the contract for houses, infrastructure of roads, sanitation, etc on the Groutville Priority 2 project. This was valued at R176m.
Mpisane said there was no need for her to commit fraud in securing tenders because there was an “abundance” of lawfully procured work to keep her busy.
She said the CIDB grades were designed to ensure there was no wasteful expenditure in terms of the Public Finance Management Act.
“There is no allegation in this case of wasteful expenditure of public monies, and evidence will show that full value was received from Zikhulise in exchange for the public monies expended on the various projects.”
Mpisane has a previous conviction for fraud in May 2005 for which she received a wholly suspended sentence after entering into a plea bargain.
She is currently on bail on two pending matters.
In the first case, partly heard at the Durban Regional Court, she faces 119 counts for allegedly defrauding Sars of R4.7 million by inflating invoices and contravening the Close Corporations Act.
The trial resumes in May.
Mpisane was arrested in October for allegedly persuading a State witness to alter an invoice relevant to proceedings in the part-heard matter.
“This allegation was so fatally flawed, it was stillborn,” she said in her affidavit.
The State is opposing bail at the present fraud hearing.
Investigating Officer Colonel Kubenthren Naidoo testified that the pending matters were not relevant to the current case.
He said the investigations were conducted by different agencies and have not been combined.
Naidoo said the evidence before him suggested that one month after she was convicted, Mpisane submitted fraudulent documents, showing her propensity to commit further crimes.
Naidoo said most of the charges relate to incidents between 2005 and 2011.
During cross-examination, Howse told Naidoo that the charges were “absolute nonsense from A to Z”.
“The Department of Public Works have not complained and you arrest her.
“I’ve never in my life heard of a person being arrested and her contract carrying on while she sits in jail.”
Howse said Naidoo’s attitude was misguided.
Prosecutor Joanna Bromley Gans pointed out that: “She (Mpisane) has a previous conviction, a pending fraud case and is now in this court on further fraud charges.”
The bail hearing continues on Friday.