Mpisane outfoxes CIDB in appeal court

Charges against Zikhulise dismissed

Businesswoman and socialite Shauwn Mpisane this week scored a major victory when the Supreme Court of Appeal (SCA) dismissed the plethora of charges the Construction Industry Development Board (CIDB) had laid against her company, Zikhulise Cleaning Maintenance
and Transport CC, six years ago.

On 25 April 2013, Zikhulise was notified by the CIDB of the impending inquiry to be conducted in terms of the CIBD Act 38 of 2000.

In response to the notification, Zikhulise applied to the investigating committee of the CIDB to dismiss the charges. It refused to do so. The company then approached the Pretoria High Court to review that decision.

However, the high court dismissed the appeal.

Some of the charges CIBD laid against her company related to tax clearance certificates it alleged were forged.

Other charges related to deficiencies and differing financial figures reflected in various annual financial statements submitted by the company to the CIBD, which the board alleged were either incorrect or did not reflect the true financial position of the company.

Mpisane was also criminally charged for allegedly forging documents to secure a favourable grading with the CIDB for tenders between 2005 and 2012, but the charges were later dropped.

Zikhulise argued at the SCA that the CIDB had no authority to penalise or regulate it for failure to comply with the code, regulations or the act, during the period when it was not registered with the regulator.

The SCA concluded the code of conduct the CIDB relied on does not apply to relations between parties involved in the construction procurement process on the one hand and the regulator on the other.

The SCA also ruled that 17 of the 20 charges related to Zikhulise’s actions were not covered by the code of conduct and therefore ought to have been dismissed. “The result is that the validity of the reg 29 inquiry fails at the hurdle of legality.

In these circumstances, all the charges fail by reason of the procedural irregularity just mentioned, and the first 17 charges fail further by reason of their not amounting to breaches of the code.

“For these reasons, all the charges against the appellant [Zikhulise] should have been dismissed. The committee [CIBD] erred in not doing so, and the court a quo [lower court] erred in not upholding the appellant’s application for review of the committee’s decision not to do
so. The appeal must therefore succeed,” reads the judgment.

Mpisane did not respond to requests for comment.

By Kabelo Khumalo

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