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Durban - Shauwn and S’bu Mpisane have lost their challenge against a R70 million restraint order against their assets.
This means that pending any appeal against Monday’s ruling by Judge Sharmaine Balton, properties, cars, cash and policies will remain under the control of court-appointed curator Trevor White until after the outcome of a criminal trial, due to begin next year, in which Shauwn Mpisane is accused of 53 counts of fraud, forgery and uttering.
The charges relate to the alleged submission of false documentation to the Construction Industry Development Board (CIDB) to boost gradings given to Zikhulise Cleaning, Maintenance and Transport to obtain tenders from the Department of Public Works.
While initially the charges - and the asset forfeiture application - related to five contracts valued at R140m, the State conceded that the true value of the alleged crime was just more than R70m because one contract - an upgrade at Clairwood Hospital worth R69m - had not been proceeded with.
This was one of the reasons advanced by Mpisane’s lawyers as to why the interim restraint order should be set aside in its entirety. They said this was “material information” which may have influenced the granting of the order, and the State should have been aware of this because the cancellation had been published in the Government Gazette.
Ruling on this issue, Judge Balton said while the court noted its disapproval that the cancellation had not been raised when the initial order was sought, she said it would still have been granted because of the nature of the allegations and the “prima facie” proof placed before the court.
She said the Mpisanes had not been prejudiced because the parties had agreed on the amount to be restrained almost immediately.
The Mpisanes also raised two other defences to the interim order being confirmed: whether there were reasonable grounds that a confiscation would be made in due course, and whether there was a reasonable prospect of a conviction.
Judge Balton said it was clear the Mpisanes had a lavish lifestyle with luxury properties and vehicles which, the State alleged, was procured by income derived from the tenders it received through the false (CIDB) gradings.
She said in terms of the Prevention of Organised Crime Act, a court, in convicting someone, may grant a confiscation order if it finds there has been benefit from the offence.
“It is not necessary for this court to find that the respondents in this matter have benefited from unlawful activities or crimes. It is sufficient that it finds there are reasonable grounds to believe they may be convicted and be proved to have benefited. This court is satisfied on the evidence presented that there are reasonable grounds to believe they may be convicted… there is a prima facie case against them,” she said.
The Mercury reported last week that the Mpisanes had put up 11 properties, including their plush family home in La Lucia, household contents, two insurance policies and cash to make up the R70m.
Initially, 11 luxury vehicles were seized but most have been returned to them in return for cash, and they have also regained control of their business.