Durban - Fraud-accused Shauwn Mpisane spent Thursday night in her comfortable bed in her La Lucia mansion, but on Friday she could swop that for a prison cell if she is not granted bail.
In her affidavit in support of bail, Mpisane says she is cash-strapped – her “cash reserves significantly depleted” – and has asked that bail not be fixed at more than R50 000.
In what he conceded was an “unusual move”, Durban Commercial Crime Court magistrate Gerrie Maree allowed Mpisane to go home “on warning” late on Thursday afternoon when time ran out for him to make a decision in her bail application.
“I cannot be hurried,” he said, as the clock ticked and Mpisane’s advocate, Jimmy Howse, urged him to make a ruling, even if he gave reasons later.
“It may sound like a contradiction to release her on warning (overnight), but she was not formally arrested. She handed herself in this morning,” the magistrate said, releasing Mpisane to go home for the night.
Prosecutor Joanna Bromley-Gans said she had no objection because Mpisane was not a flight risk.
However, in her closing argument she urged the magistrate to put Mpisane behind bars pending her trial, saying that with her previous conviction for fraud and two other pending cases, she had a propensity to commit fraud.
She said it was possible that Mpisane would interfere with witnesses. Also, granting bail would not be in the interests of justice because of negative public opinion.
A slimmer Mpisane, wearing a figure-hugging dress and her trademark towering heels, appeared in court on 53 counts of fraud, forgery and uttering relating to her alleged submission of false documentation to the Construction Industry Development Board, boosting gradings granted to her company Zikhulise Cleaning, Maintenance and Transport cc and resulting in her being granted five contracts, involving more than R140 million, from the Department of Public Works between 2005 and last year.
The Asset Forfeiture Unit has secured a court order “preserving” assets to the value of R140m and, on Wednesday, in a raid on Mpisane and her husband’s Addison Road home, their fleet of luxury vehicles was seized and taken into storage. The order also restrains their home and other properties, cash in their bank accounts, and about 50 vehicles used in their businesses.
Curator Trevor White has been tasked with identifying the couple's other assets.
Mpisane has argued that putting her in jail would be counterproductive to the preservation order because it would put Zikhulise – which was involved in huge “lawful contracts” worth R658m and employing many thousands of people – out of business.
These contracts, she said, also demonstrated that there was no need for her to commit fraud to secure contracts while out on bail because she had “an abundance” of lawfully procured work to keep her busy.
She said the R140m tag put on her alleged crime was misleading, because most of the contracts had been completed to the satisfaction of the department.
“I fail to understand how actual prejudice can be alleged… it’s an absurdity,” she said.
She pointed out that one contract, for the Inanda Clinic, was under way and although she had been charged with fraud in connection with it, the department continued to honour it and “was obviously happy with the performance”.
In another contract, work had not commenced and there had been no payments and no loss, and yet the contract price of almost R70m had been included in the R140m.
“The charges are more illusory than real... if I am ever convicted, I will never be sentenced on the basis of loss to anyone amounting to R140m,” she said.
Regarding her alleged propensity to commit crime, she said her previous conviction for fraud dated back to 2005. Her two pending cases – one involving suspected tax fraud and the other a suspected attempt to defeat the ends of justice – were just allegations and she was innocent until proved guilty.
She accused the State of doing a “piecemeal investigation” through different investigation units and coming up with a “proliferation of charges, largely based on similar facts”.
In his evidence, investigating officer Colonel Kubenthren Naidoo, of the Anti-Corruption Task Team, said the cases were different and his case was strong.
He conceded under cross-examination that the department was not the complainant in the matter and he could not say why it had not cancelled the Inanda Clinic contract.
“The evidence will be led and it will show she committed these crimes,” he insisted.
The magistrate is expected to rule on bail on Friday morning.