Fraud trial witnesses summoned

2013-03-01 00:00

THREE witnesses including a former senior education official in KZN are going to be subpoenaed to give evidence in the trial of fraud accused Jabulani Mabaso, following defence complaints about the way the investigation was conducted.

Defence advocate Willie Vermeulen SC yesterday described as “astounding” this week’s eleventh-hour concession by the prosecution that one of the key allegations against Mabaso and Indiza Infrastructure Solutions had been “false all along”.

He detailed the severe consequences suffered by Mabaso as a result of the prosecution, which dates back to 2008.

Acting Pietermaritzburg High Court Judge Kobus Booyens said he agreed with Vermeulen that it was in the interests of justice for the court to hear the evidence of three witnesses in this regard — former Department of Education (DOE) superintendent-general Themba Ndlovu, the investigating officer, Alan Nixon, and a state witness, Gillian Broughton.

He ordered that the trio be subpoenaed to give evidence when the case resumes again on July 8, saying it would be unfair to expect them to testify at short notice.

The prosecution conceded on Wednesday, in reply to an application for Mabaso’s discharge at the close of the state’s case, that it had not been able to prove the allegations in the indictment that Mabaso and Indiza were not entitled to profit from their relationship with the KZN education department.

State advocate Wendy Greef agreed therefore that Mabaso and Indiza were entitled to be discharged on 12 of the 18 counts of fraud, forgery and uttering in the indictment, while maintaining that there is a case for them to meet with regard to the remaining six counts.

Greef told the court that the state had closed its case without calling any witnesses from the DOE after consulting with former senior official Themba David Ndlovu.

She said when the prosecution consulted with Ndlovu, he had agreed with another state witness, Paul de Villiers, that Indiza had been entitled to mark up stationery it had supplied to schools on the DOE’s behalf. The state decided not to call him and made him available to the defence.

Greef said the state had felt it would have been unethical to then call other DOE witnesses to contradict Ndlovu, because that could have misled the court.

“The consultation [with Ndlovu] only took place the same morning that the state’s case was closed because it had been extremely difficult to get hold of Mr Ndlovu earlier,” she said.

But Vermeulen said yesterday it was plain that no statement had ever been taken from Ndlovu and he questioned if this was part of a “recurring pattern of selective investigative efforts on the part of the state” in the matter.

Vermeulen said the consequences of the prosecution were severe for Mabaso and Indiza. The case had been pending since 2008 and received widespread coverage “of the most negative nature imaginable to the accused”, Indiza had been wound up as a direct result of the case and Mabaso’s assets had been under restraint ever since his arrest. In addition, enormous amounts in legal costs and “many days of the court’s time have been wasted”, he said.

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