Court asked to acquit PE tax fraud accused

Case against Crous, Pienaar weak, say lawyers

LAWYERS representing controversial businessman Theunis Crous and a former employee believe the prosecution’s case is so weak that the men should not be expected to answer to allegations that they defrauded the taxman out of about R5.4-million.

The application for their early acquittal, at the close of the state’s case, comes almost four years after the charges first came to light.

In lengthy heads of argument handed to the Port Elizabeth Commercial Crimes Court, where Crous and Almero Pienaar appeared yesterday, Advocate Bruce Dyke said for the state to prove the allegations, it first needed to show that the accused had acted unlawfully and intentionally.

While state advocate Antoinette de Jager indicated that she would defend the action, she has not yet filed opposing papers.

The court will hear oral argument on June 21, before the magistrate gives his ruling.

Crous, 60, who now lives in Johannesburg, was the owner of the Ho Hup Corporation, a construction company in Port Elizabeth which has since been liquidated.

Pienaar was Ho Hup’s chief financial officer.

Should lawyers Chris Morgan, Ryno Scholtz and Dyke succeed in the application in terms of Section 174 of the Criminal Procedure Act, Crous and Pienaar will be acquitted without having to take the stand.

The procedure also opens doors for a possible civil claim for malicious prosecution.

But should their bid fail, the men may be subjected to gruelling cross-examination.

While both pleaded not guilty at the start of trial, they did not offer plea explanations.

Crous and Pienaar were arrested by the Hawks in November 2012 for allegedly submitting false value-added tax (VAT) refunds on behalf of Ho Hup between December 2009 and January 2011.

It emerged in court that between November and December 2010, Pienaar approached several suppliers and asked them to provide pro forma invoices for the supply of goods so that he could secure financing from Money Mentor Finance (MMF) for a low cost housing project in Motherwell.

The suppliers were each told to submit pro forma invoices for the first 70%, after which the outstanding payments would be made once work had kicked off.

It was only after some of the suppliers began work or started delivering goods that they were informed that MMF had declined all financing. The prosecution alleged that, despite some of the goods not being supplied, Pienaar – at the behest of Crous – submitted VAT returns to SARS reflecting that R3.6-million and R1.8-million, respectively, were due to Ho Hup.

But Dyke said it emerged during testimony that following a forensic audit of Ho Hup’s VAT returns in March 2011, Pienaar, when faced with the difficulties raised by the VAT auditor, immediately attempted to obtain original documentation from MMF in respect of missing invoices, and passed journal entries to give effect to corrections required by SARS.

“Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another,” Dyke said.

“For the prosecution to succeed in a conviction on this count, they would have to establish that Crous and Pienaar had an intention to defraud SARS.”

Dyke said that there was no evidence of deceit.

When certain errors were brought to Pienaar’s attention, he immediately attempted to correct them.

He said that there was no evidence, of any moment whatsoever, to suggest that Crous and Pienaar acted with a common purpose to commit a crime.