Despite being labelled a flight risk by law enforcement agencies, Howard Mashaba has been given a suspended fine of R40 000 for failing to detail previous fraud convictions when applying for bail in a separate matter involving Absa in May 2019.
Mashaba faces a Special Investigating Unit (SIU) inquiry into national lotteries corruption totalling R34 million, and has three criminal records, including a September 2008 fraud conviction.
On Monday, magistrate Phindi Keswa sentenced him in the Johannesburg commercial crimes court for the contempt of court charge after he had failed to disclose that he had previous convictions when he applied for bail on a charge of defrauding Absa by getting a home loan with allegedly forged documents.
A source close to the state’s case against Mashaba said of Keswa’s decision to give Mashaba a R40 000 fine and suspend it for five years: “She ignored the conviction for contempt of court in respect of which he has not served a sentence. She said she would not enforce it and did not even consider it to be a previous conviction.”
In July 2019, Mashaba was again convicted of contempt for defying a court order to pay Mercedes-Benz South Africa the about R22 million which was owed by his Xilumani transport business.
Mashaba was sentenced to 30 days imprisonment for the contempt charge. State prosecutor Richard Chabalala previously said there was evidence that Mashaba had tried to appeal his conviction but the application was dismissed.
Chabalala added that Mashaba had failed to hand himself over to the department of correctional services to serve the 30-day sentence imposed on him, making him a fugitive from justice.
Presenting his heads of argument on Monday, Chabalala said Mashaba was already in conflict with the law over the Mercedes-Benz case.
“The crime of contempt of court punishes those who diminish public respect for the courts,” Chabalala said.
“Failure to disclose previous convictions or pending cases in contravention of the provisions of section 60(11B) of the CPA [Criminal Procedure Act] is an act that is intended to defeat or obstruct the administration of justice and therefore a form of defeating or obstructing the course of justice.”
He argued that a sentence imposed by a court must seek to achieve one or more of the main purposes of punishment, namely deterrence, prevention, rehabilitation or retribution.
Chabalala highlighted that, in July 2019, Mashaba was warned by magistrate Phillip Venter to disclose all his previous convictions.
“The accused took a conscious decision to not uphold the dignity and authority of the court that dealt with his application for bail by omitting to tell the court about the pending case of contempt and disclose the two previous convictions,” Chabalala said.
Furthermore, he said, section 60(11B) states that an accused person who fails or refuses to comply or furnishes the court with false information shall be guilty and is liable to a conviction of imprisonment for a period not exceeding two years.
“There is no evidence of him being released on bail pending a petition to the supreme court of appeal, meaning that Mashaba is a fugitive from justice and does not have any respect for the rule of law,” Chabalala said.
The prosecutor reminded the court that, during his bail hearing, Mashaba had told the court that he was a single parent and then later tried to convince it that he did not mean to say he was the only person responsible for the upbringing of his children.
He said only imposing a fine instead of imprisonment would create an impression that because Mashaba had money, he had no reason to uphold or respect the rule of law and could lie to the courts and get away with it.
“To uphold the rule of law, the courts should jealously protect the administration of justice by imposing sentences that will not only have a retributive effect but also serve to deter others from similar conduct,” Chabalala said.
Investigating officer Scotch Tabana previously highlighted that Mashaba had allegedly defied all the bail conditions imposed in October 2019.
In an explanatory affidavit compiled at the state’s request for Mashaba’s imprisonment, Tabana said part of his October 2019 bail conditions was that he should hand over his passport to investigators. At some point, Mashaba applied for the relaxation of the condition relating to his passport because he wanted to fly to the US.
“It bears mentioning that, even though he had been to the USA a few times, his previous convictions resulted in him being refused a visa as investigators received a tip-off that he was planning to escape to the USA in 2020,” Tabana’s affidavit stated, adding that Mashaba had violated the conditions relating to his place of residence.
The state prosecutor had argued for imprisonment, saying Mashaba had no respect for the rule of law
