Durban: Convicted fraudster Vimal Rajbansi, the son of the late leader of the Minority Front, Amichand Rajbansi, claims he is too ill to serve time behind bars.
During mitigation of sentence in the Specialised Commercial Crimes Court at the Durban Magistrate's Court on Monday, Rajbansi provided a list of ailments. These included a cardiac condition, a chronic spinal problem and hypertension.
The 51-year-old, of Shannon Drive in Reservoir Hills, said if he was imprisoned it would exacerbate his condition and lead to an early death.
Rajbansi and Gideon Pretorius, 51, a former North West businessman, were found guilty of R3.1 million fraud in November. This related to a 2010 business deal that involved the sale of office equipment.
According to the State, Brainwave Projects secured finance for their client, Ditona Construction, in November 2010 from Merchant West KZN. The latter company provides asset finance.
Rajbansi was an agent for Brainwave Projects, while Pretorius was the director of Ditona Construction.
The men financed office equipment for Ditona Construction from Merchant West KZN on a rental/lease agreement. Merchant West KZN however maintained ownership of the equipment.
Two months later, Merchant West KZN found out that Ditona Construction was being liquidated. They attempted to recover the equipment before it was taken over by the liquidators. It was then discovered that the equipment had already been secured by another company, in terms of a similar agreement.
Rajbansi and Pretorius were charged in 2011 with fraud and released on bail of R25 000 each.
This week, advocate Jay Naidoo, acting for Rajbansi, said the chronic illness was a substantial and compelling reason why Rajbansi should not be imprisoned.
He referred to supporting medical documents attached to the social worker's report.
"According to Dr Terrence Govender's medical report, the accused has a hypertensive condition, a cardiac problem, a gastroenteritis problem and a chronic spinal problem.
"In the second annexure, his physiotherapist sets out the spinal-related problems. I would also like to draw your attention to the list of comorbidities such as chronic cardiac failure, peripheral vascular disease, hypertension, hypercholesterolemia, ulcerative colitis and immunosuppression, which is a compromised immune system."
Naidoo said Rajbansi was a first offender and that over the past 12 years, he had not been linked to any other criminal activity. He added that Rajbansi had three children, two of whom were minors.
"Although the primary caregiver for these children is their biological mother, who the accused has been separated from, they have a co-parenting plan. The accused spends a considerable amount of time with his minor children.
"By all accounts, he is an active parent and has a close bond with his children. He supports them financially. He contributes to their school fees and general expenses."
Naidoo said Rajbansi lived in Reservoir Hills with a full-time helper and the home belonged to his family's trust. He said Rajbansi received intermittent stipends from the trustees for the home's maintenance.
Naidoo said Rajbansi was self-employed. He sold second-hand vehicles and office equipment.
Magistrate Judy Naidoo then asked if Rajbansi was doing the same type of business that formed the basis of the charges he was found guilty of.
Naidoo responded: "He worked for a very long time in the industry and that's what he knows."
He then said the death last year of one of the co-accused, Younus Patel, had left unanswered questions in terms of where some of the money went.
It had emerged in court that R2.3 million of the R3.1 million that was defrauded was transferred into Patel's bank account.
"One must accept that to sentence the accused without taking into account Patel's involvement will be unfair."
Magistrate Naidoo said Rajbansi and Pretorius had had an opportunity to give evidence on Patel.
"It is only now that Patel has passed away that the buck is being passed."
Rajbansi’s lawyer asked the court to deviate from the prescribed minimum sentence of 15 years. He said prisons were overcrowded and would not serve to rehabilitate Rajbansi.
Meanwhile, Pretorius, who represented himself, asked for a suspended sentence.
"A prison sentence will not be to my benefit. It is a known fact that prisons are in bad conditions. I am a first offender and this is my first clash with the law."
He said over the past 10 years he had suffered remorse and his intention was not to cheat his clients, adding, "I admit that I was ignorant and negligent."
Pretorius said he had lost everything he owned.
"I have no income and this has placed a strain on my children, who take care of me and my retired father whom I stay with. I suffer from insomnia, stress, anxiety and depression."
During aggravation of sentence, Paul Buckle, the CEO of Merchant West and the complainant in the matter, said Merchant West KZN was a thriving franchise of the Merchant West Group when the fraudulent transaction surfaced in January 2011.
"It sent shivers down my spine as I knew the consequences would be far-reaching and damaging to the company and myself."
He said he had to repay most of the money from his personal capital and that the matter put a strain on his marriage and home environment. Buckle said the financial impact led to Merchant West KZN losing its franchise rights.
"While white-collar crime is often seen as harmless, it is not the case here."
Buckle asked the court for a Section 300 order against Rajbansi primarily to recover monies that were lost.
He said Rajbansi delayed the criminal case and was using the same delaying tactics in a civil matter against him, claiming that he was in poor health.
Buckle said he had started a civil proceeding against Rajbansi in December 2011, which was yet to be finalised. He said he had paid more than R900 000 in legal fees to date.
Buckle said the matter was set down for trial in May 2022 but he believed it would be adjourned again.
He said a Section 300 order could prevent him from incurring further costs in the civil matter. Buckle also asked for the maximum sentence to be imposed on the accused.
Nevas Heeralal, the State prosecutor, asked the court to consider a term of direct imprisonment and the Section 300 order. He said the court should not accept the argument of health concerns to deviate from the prescribed minimum sentence. Heeralal said none of the accused appeared to be visibly ill or assisted by wheelchairs or walking sticks.
"We have to weigh what we see on paper against the perceived reality. In the course of the trial, both accused presented their evidence very well and did not fall over at any time. They both came to court with no problems.
"It would be very difficult to find people of their age that do not have some sort of health issues. It comes with the territory and shouldn't prevent the court from its duty."
Sentencing is expected this week.
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