Botha NO and Another v National Director of Public Prosecutions (920/2017) [2018] ZASCA 146 (11 October 2018)

Botha NO and Another v National Director of Public Prosecutions (920/2017) [2018] ZASCA 146 (11 October 2018)

The Supreme Court of Appeal found that the deceased, in her capacity as Head of Department, deliberately breached procurement regulations to favour Trifecta, resulting in the award of lucrative leases. In exchange, Trifecta paid for extensive renovations to her property and transferred shares to a trust benefiting her family. The evidence demonstrated that the purported loan agreement was fabricated after the fact to conceal the true nature of the renovations as gratification for corrupt activities. Both the renovations and the shares constituted proceeds of unlawful activities, namely corruption and money laundering. However, the court held that forfeiture of the entire property was...

Citation
[2018] ZASCA 146
Parties
Appellant: Gesiena Maria Botha NO; Appellant: Angelique Botha NO; Respondent: The National Director of Public Prosecutions
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
11 October 2018
Case Number
920/2017
Procedural Posture
Civil Appeal / Appeal From Northern Cape Division of the High Court, Kimberley
Outcome
Appeal upheld in part; forfeiture of entire property set aside and substituted with payment of renovation value; appeal against forfeiture of shares dismissed; respondent ordered to pay costs.
Judges
Majiedt, Swain, Mathopo, Schippers, Mokgohloa
Legal Topics
Prevention of Organised Crime Act, Forfeiture of Proceeds, Corruption, Money Laundering, Proportionality Enquiry, Public Procurement Irregularities
Criminal Law Civil Procedure Administrative Law Prevention of Organised Crime Act Forfeiture of Proceeds Corruption Money Laundering Proportionality Enquiry +1 more

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Parties

Gesiena Maria Botha NO

Appellant

Angelique Botha NO

Appellant

The National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Appeal / Appeal From Northern Cape Division of the High Court, Kimberley

Legal Issues

  1. 1 Whether the property and shares constituted proceeds of unlawful activities under section 50(1)(b) of POCA.
  2. 2 Whether the forfeiture of the entire property was proportionate and constitutionally permissible.
  3. 3 Whether the deceased's conduct amounted to corruption and money laundering.

Ratio Decidendi

The Supreme Court of Appeal found that the deceased, in her capacity as Head of Department, deliberately breached procurement regulations to favour Trifecta, resulting in the award of lucrative leases. In exchange, Trifecta paid for extensive renovations to her property and transferred shares to a trust benefiting her family. The evidence demonstrated that the purported loan agreement was fabricated after the fact to conceal the true nature of the renovations as gratification for corrupt activities. Both the renovations and the shares constituted proceeds of unlawful activities, namely corruption and money laundering. However, the court held that forfeiture of the entire property was...

Court Disposition

Appeal upheld in part; forfeiture of entire property set aside and substituted with payment of renovation value; appeal against forfeiture of shares dismissed; respondent ordered to pay costs.

Orders

  • The order declaring the entire property forfeited to the state is set aside and substituted with an order that the first appellant must pay R758,014.83 to the state within six months.
  • The amount must be paid into the criminal assets recovery account at the South African Reserve Bank.