FRAUD accused Jabulani Mabaso has applied to be acquitted without having to mount a defence.
His lawyers contend that the prosecution has failed to prove its core allegation, that Mabaso and his company were not entitled to profit from their contract to manage, procure and distribute stationery to schools in KwaZulu-Natal.
They also questioned why the department of education paid out about R190 million to Mabaso “without demur” and without asking for suppliers’ invoices, if that had been a requirement of their agreement.
Advocate Willie Vermeulen SC made these submissions yesterday when asking high court Judge Kobus Booyens to acquit Mabaso of all charges at the end of the state’s case.
Mabaso faces 18 counts of fraud, forgery and uttering arising from allegations that he and his company, Indiza Infrastructure Solutions, defrauded the KZN Education Department (DOE) of around R200 million between 2005 and 2007.
The prosecution will respond tomorrow.
Vermeulen submitted in written and oral arguments yesterday that it was clear from the evidence of the investigating officer in the case, Alan Nixon, that the initial suspicion that prompted the launch of the investigation (into Mabaso and Indiza) was an “allegation of an improper relationship between Mabaso and some or other official of the DOE”.
Two people who had been involved in recommending the acceptance of the tender by Indiza were suspended, but later acquitted when discplinary steps were taken against them, he said.
However, another “unidentified official” from the DOE had complained that Indiza had profited excessively or was not entitled to profit at all from the agreement.
This complaint, said Vermeulen, appeared to be based on an “erroneous reading” of the agreement (between Indiza and the DOE) and resulted in an “entirely misdirected” investigation based on the idea that Indiza was not allowed to sell stationery to the department at a profit.
“From this initial error, a number of related errors rose, most notably the allegation that it was encumbent on Indiza to submit suppliers’ invoices as support for their own, before they would be entitled to payment,” he said.
Vermeulen submitted that the fact that there could not possibly have been such an agreement is supported by the fact that the DOE paid about R190 million to Indiza “without demur and certainly without requiring suppliers’ invoices”.
He said clear evidence by state witnesses themselves was that as a matter of practice suppliers’ invoices were never submitted to the department (with two exceptions) and the DOE never asked for any.
“Yet, despite the glaring nature of the error, the state doggedly soldiered on with this prosecution,” he said.
He submitted that in the circumstances there was no reason for Mabaso to have given instructions to anyone to falsify suppliers’ invoices to create the wrong impression that the stationery was being supplied (to the DOE) at cost.
Vermeulen said this undermined testimony given by state witnesses, Gillian Broughton and Paul de Villiers and their evidence should not be accepted.
“It can safely be said that no reasonable court can convict on this evidence knowing of the shortcomings in the remainder of the state’s case.”
Vermeulen said during his argument that the prosecution had failed to call a single witness from the department to testify about what had been required from Mabaso and Indiza in relation to the alleged agreement and said if the court accepted the defence argument that the state had failed to prove that Indiza was obliged to submit suppliers’ invoices and supporting documents to the DOE, and was not entitled to make a profit, then the other charges also “become academic”.
He submitted the state had “manifestly failed to establish either assertion”.
Vermeulen said the defence maintained that there was only one valid agreement between Indiza and the DOE, which was extended from time to time, and rejected the state’s allegation that a second “tacit, oral agreement” was entered into between the parties.
