INLSA
Tax fraud accused Shauwn Mpisane with her husband, former Metro policeman Sbu Mpisane, leave the Durban regional court where her trial finally got under way late yesterday.
The multimillion-rand tax fraud case against Durban businesswoman Shauwn Mpisane was a whisper away from total collapse yesterday when, in defiance of two rulings by the magistrate, the prosecutor said she could not proceed with the trial.
“I warned you that if the State is not ready to lead evidence the accused will be acquitted,” Durban regional court magistrate Blessing Msani told Prosecutor Meera Naidu just before lunchtime, urging her to reconsider her stance during the lunch break.
She did. But she ruffled the magistrate’s feathers further when she said she was proceeding “under protest”.
Naidu was first put on terms on Friday when the magistrate ruled in favour of a defence application that the trial should proceed on the existing charge sheet containing 119 charges against Mpisane and her Zikhulise Cleaning, Maintenance and Transport.
The application was in response to Naidu requesting an adjournment in order to join additional charges of corruption and defeating the ends of justice for allegedly interfering with a witness, and other tax-related charges
Agreeing that there had been an unreasonable delay in the trial, Msani said Mpisane could not be left in limbo with a case hanging over her head while the state “somersaulted” and shifted the goal-posts.
The South African Revenue Service is the complainant in the case, saying Mpisane defrauded it of R4.7 million by inflating invoices and contravening the Close Corporations Act.
Msani noted that Mpisane had already pleaded not guilty to the charges and he ordered that the trial proceed.
But yesterday Naidu sprung a surprise on the magistrate and the defence, asking for another adjournment, saying she had been instructed by the acting director of public prosecutions in the province (Advocate Moipone Noko) to make a High Court application for a judicial review of Friday’s ruling.
Challenged regarding the basis of this, Naidu conceded that she had “not had time to apply my mind totally”.
The magistrate gave her time to prepare submissions and then ruled against her, saying she had not alleged any irregularity or illegality and her application was “bad in law”.
Naidu then insisted that she could not proceed with the trial “because I was only instructed to bring the application today”.
Dumfounded, the magistrate asked what the plan was should the application be refused, Naidu said: “There was no plan to proceed.”
The magistrate urged her to rethink. “Are you aware of the implications?” referring to the fact that he would have no choice but to acquit Mpisane.
After the lunch break, Naidu said the State was proceeding with its judicial review “because we feel strongly that the State is being prejudiced”. If it won its case, then the present trial would be set aside so she would continue with it “under protest”.
Defence advocate Jimmy Howse said this was tantamount to contempt of court but the magistrate instructed that the trial proceed.
The case remains in jeopardy, however, with the disclosure by Howse that he was challenging the admissibility of “every single document” the State intended to produce because, he says, they were all used in “voluntary disclosure” and alternative dispute resolution negotiations.
The trial has been set down for the rest of the week.
