An extraordinary complaint has been lodged with the KwaZulu- Natal Society of Advocates against Nalini Govender, a member of the Durban Bar who has also served as a magistrate in the province.
A local bond originator, Suchu Pillay, alleges that Govender disclosed to him in mid-2015 that she had received more than R500000 from “Mpisane”, which he understood to refer to the husband-and- wife team of Sbu and Shauwn Mpisane. The allegations are untested and have been denied.
The Mpisanes are famous for their his-and-hers Rolls-Royces, their political connections, their string of lucrative low-cost housing contracts and their brushes with the law.
In 2013, Govender, acting as a magistrate, presided over a case involving fraud and corruption charges brought against Shauwn Mpisane in the Durban Commercial Crime Court.
The charges — relating to allegations that Mpisane had fraudulently obtained Construction Industry Development Board (CIDB) certificates — were provisionally withdrawn in January 2014 after Govender refused the prosecutor’s request for a postponement.
“… any allegation that I paid her any monies is not true, which I take very seriously.”
Mpisane denied any wrongdoing and was defending the case before it was withdrawn.
Sbu Mpisane told amaBhungane this week: “We would like to state that advocate Govender was never part of my legal team and any allegation that I paid her any monies is not true, which I take very seriously.”
Govender declined to answer detailed questions, citing the society’s complaint process and her own pending legal action against Pillay.
Her attorney, Reg Thomas, said: “Since our client has instructed us to institute legal proceedings against Mr Pillay arising from the defamatory content and spurious nature of his affidavit, which is littered with lies and unsubstantiated claims, this matter is sub judice and she will not be drawn into litigating same via the media. We emphasise that our client’s election not to respond to your questions should not be construed as an admission of any of the allegations whatsoever.”
Pillay’s affidavit explains that he was involved in an application for a mortgage bond of R4.2-million for Govender to buy an upmarket property in Umhlanga.
He says that when he inquired about her eligibility, he noted that her income was inconsistent with being able to afford the repayments on such a large bond.
Pillay alleges that Govender, in response, claimed income from other sources, including “a lump-sum payment in the region of R500000 to R750000 from a[n] Mpisane who was/is her client”.
Pillay states: “I expressed my reservations of her now-claimed additional income stream … in particular that received from Mpisane.
“Even more concerning was that advocate Nalini Govender presided over the Mpisane case, who is now acquitted as I understand. I expressed my reservation … to the point were she abandoned my services and I did not pursue the matter any further.”
the circumstances surrounding the NPA’s decision to withdraw the charges are worth reporting
AmaBhungane has established that Govender went on to buy the property, but at a substantially reduced price of R3.25-million, after having obtained a bond for R2.925-million.
Among the questions Govender declined to answer at this stage was whether she came to an arrangement with the seller, which allowed him to reduce the purchase price.
Magistrates often refuse repeated postponements, citing the accused’s right to a reasonably speedy trial, so no adverse inference can be drawn from Govender’s decision in this case, especially given that both she and Mpisane have in effect denied any such payment took place.
But the circumstances surrounding the National Prosecuting Authority’s (NPA’s) decision to withdraw the charges are worth reporting.
In September 2013, prosecutor Wendy O’Brien had sought a six-week postponement from acting magistrate Govender. O’Brien wanted time to obtain a forensic report and to prepare an application for the case to be transferred to the high court.
Mpisane was accused of submitting forged documents to obtain CIDB gradings, which were then used to win five public works tenders worth R140-million.
The NPA withdrew the charges, citing the fact that forensic investigations couldn’t be finalised by the deadline set by Govender
According to news reports, Govender said there was no justification for the six-week postponement and Mpisane would be prejudiced by the “inordinate delay”.
O’Brien reportedly asked that the case be heard by another magistrate and Govender said that if the state was unhappy with her hearing the case it could bring an application for her to recuse herself when the trial started.
But it never got to that stage.
On January 15 2014, the NPA withdrew the charges, citing the fact that forensic investigations couldn’t be finalised by the deadline set by Govender.
The case has never been re-enrolled but the investigation is still open.
Pillay appears to have made his affidavit after a falling-out with Govender. He alleges that some time this year he approached Govender about her “submissions made to me regarding her financial position” as he “anticipated an audit”.
“During my interactions with her for information, I was involved with an accident and engaged with her regarding problems that I was having with an errant panel repair shop … she made it clear that she will solve my problems provided that I do not disclose her irregular application for finance,” Pillay claims.
But in August this year Govender became angry and cut him off, citing, Pillay claims, his refusal to assure her that he would “cover” for her.
The next day Pillay drew up the affidavit and delivered it to her office. It includes an implied threat.
“It appears that advocate Nalini Govender obtained finance under fictitious representations and that I have an obligation to advise the financial institute to review the application and cancel the granting of her facility.”
If that letter was intended to silence Pillay, it did not succeed
Govender responded with a lawyer’s letter from Thomas, in which he warned Pillay: “You have been harassing our client via telephone calls, SMSes and visits to her office … Our client has on numerous occasions informed you that she is unable to assist you to litigate on your behalf without an attorney briefing her.
“Despite the aforementioned, you went to our client’s office on Monday August 8 2016, and dropped an affidavit signed by yourself with our client’s secretary. The said document contains defamatory material about our client.
“Our client fails to understand the purpose of you leaving this document at her office. We do, however, wish to place on record that, if you are of the view that our client will be intimidated or in any way threatened by your unfounded allegations contained therein, you are gravely mistaken.
“Our client is considering laying a charge of intimidation/harassment against you, and you will be informed of same accordingly.
“We trust that good sense will prevail and that you will not contact our client directly or indirectly in any form whatsoever.”
If that letter was intended to silence Pillay, it did not succeed. He subsequently forwarded the complaint to the Society of Advocates.
The society has asked Pillay for a more detailed affidavit before deciding whether it will take up the complaint.
The body told him: “The society will require a far more detailed factual history before any meaningful investigation into your allegations could be undertaken.”
It raised concerns about Pillay’s complaint: “You will recall that, when I asked you about the statement in your affidavit that [Govender] had referred to plans coming from ‘a[n] Mpisane’, you told me she had actually said ‘from the Mpisane case’, which in the context is obviously an important difference. You should please think very carefully about every single detail.”