Durban - Durban businesswoman Shauwn Mpisane, who has taken legal action to get her R70 million in restrained assets back, could be in for a fight as the Asset Forfeiture Unit says criminal charges against her will be reinstated and her assets should remain under restraint.
Mpisane’s law firm, Shaukat Karim and Company, launched an application this week for the rescission of a decision by Judge Sharmaine Balton to put the assets under restraint.
The application comes after the State withdrew charges of fraud, forgery and uttering against her and her company, Zikhulise Cleaning, Maintenance and Transport, in the Commercial Crime Court on January 15.
The charges, related to her alleged submission of false documentation to the Construction Industry Development Board to boost gradings resulting in her landing government work valued at R70m, were withdrawn bcause the State could not meet a deadline to hand over certain information to the defence.
The assets, including R23m in cash, had been placed under restraint as a result of that case.
In her affidavit, Mpisane said the assets should be released because the State did not have a sustainable case against her and would not have been able to secure a conviction.
“The court is faced with a situation in which the restraint order has been in effect for almost a year and there are no charges against me and the second respondent (Zikhulise).”
But in a letter attached to the papers, advocate Anandhi Naidoo, of the Asset Forfeiture Unit, says the assets should remain under restraint.
“We are informed by the prosecutor that the withdrawal of the charges was based on technical reasons and that she intends reinstating them.”
Naidoo also says “any application for the release of the restrained property would be opposed” and they adopted that stance on directions from the Asset Forfeiture Unit’s national head, Willie Hofmeyr.
In response to Naidoo’s letter, Mpisane said there was every indication that the charges would not be reinstated.
She said the prosecution “had a mountain to climb” before it could reinstate charges and would also have to respond to the defence’s request for information, which it failed to do in January.
“The State’s continued refusal to answer any question pertinently or explain the nature of the defect which led to the withdrawal of charges shows it will not be a quick fix to remedy the defects,” she said.
She added that the State was “acting in bad faith” and that prosecutor Wendy O’ Brien had not responded to questions about a possible reinstatement of charges.
In a letter responding to Mpisane’s attorneys and attached to the court documents, O’Brien said the State had not behaved improperly.
“Your vexatious personal attacks against the prosecution are improper.
“Kindly refrain from making threats, false accusations and demanding information you are not entitled to,” O’Brien said.
Mpisane said she was being prejudiced by having the assets under restraint and her business was suffering.
She said her company could not tender for construction projects, including low-cost housing at the Cornubia Housing project, valued at R150m, and an R80m low-cost housing project in the Nyoni municipality in Zululand because of low cash reserves.
“The respondent is unable to work at full capacity because of the assets under restraint. This impacts directly on the employees and subcontractors.”
The application has been adjourned to later this month.
This is the only case that could be reinstated against Mpisane after she was acquitted of tax fraud charges last week.
Mpisane was acquitted after the National Prosecuting Authority took a decision to stop the prosecution because of alleged irregularities.