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The National Prosecuting Authority (NPA) is deliberating whether to reinstate the 53 charges of fraud, forgery and uttering against Durban businesswoman Shauwn Mpisane.
On Friday, Durban Regional Court magistrate Blessing Msani acquitted Mpisane and her company – Zikhulise Cleaning, Maintenance and Transport cc – on 119 counts of tax fraud involving R4.7 million.
In the fraud case, Mpisane was accused of submitting forged documents to secure Construction Industry Development Board gradings that were used to win five Department of Public Works contracts worth R140 million.
The State had withdrawn the charges in the Commercial Crime Court last month.
NPA spokesman Nathi Ncube said on Sunday that National Director of Public Prosecutions Mxolisi Nxasana had yet to decide.
Last month, he said Nxasana had instructed the head of the Specialised Commercial Crime Unit for a detailed report so he could establish whether the reasons for the withdrawal warranted his reviewing the case.
In this matter, the Asset Forfeiture Unit has a restraint order on R70m in assets. Mpisane’s legal team have been in contact with the unit about the release of these assets.
However, curator Trevor White, who confirmed being contacted about the release of the assets, said because the assets were restrained by a high court order, they would remain under restraint until the order was varied or rescinded.
Ncube said on Sunday that the NPA would not comment yet on the question of the restrained assets. It would inform the public if Mpisane’s legal team brought a high court application. The NPA would also say whether it intended to oppose it. Mpisane’s attorney, Shaukat Karim, said that a high court application would be filed this week.
In court on Friday, the State said it had received instructions from Nxasana to stop prosecution according to section 6(b) of the Criminal Procedure Act.
Mpisane’s lawyer, Rafiq Bhana, SC, asked Msani to enter a verdict of acquittal in the light of this section.
Last year, Mpisane made representations for her prosecution to be stopped. The State said Nxasana had appointed a team of senior advocates to look at the representations by the defence and the merits of the case.
In light of the acquittal, the charges of corruption and defeating the ends of justice in the Pinetown Magistrate’s Court against Mpisane fell away. These charges related to allegations that Mpisane had persuaded a State witness to alter evidence in the tax fraud case.
Outside the court on Friday, Ncube said Nxasana felt it would be in the best interests of justice to stop the prosecution. He also said the State believed that, if it had not been for alleged irregularities, they would have been able to secure a successful prosecution.
The State ran into trouble last year when prosecutor Meera Naidu was removed after the defence alleged she had suppressed evidence and questioned her ethics.
“Because of the alleged irregularities, we felt the accused would be prejudiced, and that there’s a need to investigate these irregularities further.”
On Friday, Mpisane said she was a law-abiding citizen who had paid about R150 million in taxes, and it was not fair for her to be dragged down for R4.7m.
Asked whether Sars would act further, spokesman Adrian Lackay said it was a prosecutorial decision and Sars must accept the outcome.