Durban - Former KwaZulu-Natal treasurer Dumisani Sipho Derrick Shabalala will petition the Supreme Court of Appeal (SCA) directly in a bid to stay out of jail after his application for leave to appeal his conviction and 15-year sentence was turned down in the Pietermaritzburg High Court yesterday.
National Prosecuting Authority (NPA) KZN spokesperson Natasha Ramkisson-Kara said as the leave to appeal was dismissed, Shabalala’s bail was cancelled and he had to start serving his sentence immediately.
However, speaking after the court hearing, Shabalala’s lawyer, Siphiwe Moloi of SD Moloi and Associates, said they would petition the SCA directly to appeal the lower court’s decision and to ask for Shabalala’s bail to be extended.
On September 8, Shabalala was sentenced after being found guilty in June of corruption, fraud, money laundering and contravening the Public Finance Management Act relating to his role in the so-called “Amigos case” involving the award of a contract for the supply of water purification plants in return for kick-backs. His wife, Beatrice Shabalala, who was facing charges of money laundering, was acquitted in June.
Shabalala’s lawyers yesterday filed papers in court saying their application for leave to appeal was based on issues related to the court not doing a proper assessment of the evidence.
“On the day the court delivered the judgment (June 13, 2022) it requested that it be provided with exhibit Q. This was the affidavit of Mr Mike Mabuyakhulu, who was the MEC Local Government and the treasurer of the ANC during the period in the indictment. After being furnished with the affidavit the court stated that it ‘had never seen this (affidavit) before’. This was regardless of the fact that the affidavit had been admitted into evidence. The court then ignored the affidavit and proceeded to hand down judgment immediately without having any regard to it.
“On June 14, judgment was handed down and the accused was convicted, the court, (through the Registrar) again requested Exhibit Q from counsel for the defence. It was indicated that the copy which was in possession of the court had missing pages.”
Shabalala’s lawyers further argued there was: “a clear indication that at the time of handing down its findings and convicting the accused, the court had not properly assessed all the evidence before it and had simply ignored evidence which was placed before it. The court ex post facto embellished, altered and added to its judgment to include the evidence it had not considered when it gave its judgment in open court and convicted the accused.”
They also took issue with the court finding that he was the accounting officer, saying the court found that a witness lied about being the accounting officer of the department of treasury but that the witness’ evidence was not challenged by the State and that because of this, Shabalala was entitled to believe that the evidence was accepted as true.
With regards to sentencing, Shabalala’s papers said the court had erred by not giving proper consideration to his personal circumstances.
“The court erred in failing to consider that the accused was a first-time offender; in not taking into consideration the submissions by the probation officer in the instance where the SCA endorsed such a sentencing option even in serious matters; by overemphasising the interest of the community and seriousness of the crime and the court a quo erred by not giving due consideration to the element of mercy to be offered to the accused and gave element of retribution too much weight.
Ramkisson-Kara yesterday said Director of Public Prosecutions in KZN advocate Elaine Zungu welcomed the dismissal of the leave to appeal.
“It shows that the NPA is making strides in its fight against corruption.”
Shabalala’s conviction relates to his receipt of R1.5 million from Intaka Investments, for the acquisition of “Wataka” water purification plants valued at R44m. The offence occurred between 2004 and 2007 when Shabalala formed a relationship with Uruguayan businessman, Gaston Savoi, and the company Intaka Investments. Shabalala then travelled to Brazil to view the purification equipment.
The NPA had previously said that on his return to South Africa, “he wrote to the then MEC Dr Zweli Mkhize, recommending that monies be allocated from the poverty alleviation fund for the acquisition of the water purification plants from Intaka.
“The process culminated in the awarding of a contract for 22 ‘Wataka’ plants. Shabalala was the chairperson of the procurement committee that awarded the contract.”