National Director of Public Prosecutions v Botha and Another (1825/2012) [2016] ZANCHC 89 (29 July 2016)

National Director of Public Prosecutions v Botha and Another (1825/2012) [2016] ZANCHC 89 (29 July 2016)

The court found that the NDPP had proven, on a balance of probabilities, that the property at Erf 3432, Kimberley, and the shares in the Jyba Beleggings Trust were proceeds of corruption and money laundering. Ms Botha, as Head of Department, abused her position to award tenders to Trifecta in exchange for personal gratification, including home renovations and shareholding for her relatives. The purported loan agreement was a subterfuge, with evidence showing the renovations were paid for by Trifecta and only later recorded as a loan after parliamentary scrutiny. The Jyba Trust shares were a corrupt gift, benefitting Botha's family. The procedural requirements for forfeiture under POCA...

Citation
[2016] ZANCHC 89
Parties
Applicant: National Director of Public Prosecutions; Respondent: Gesiena Maria Botha; Respondent: Angelique Botha N.O.
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
29 July 2016
Case Number
1825/2012
Procedural Posture
Forfeiture Application / Final Judgment After Opposed Application
Outcome
Application granted. The property and shares are declared forfeited to the State.
Judges
Mamosebo
Legal Topics
Prevention of Organised Crime Act, Corruption, Money Laundering, Forfeiture of Property, Conflict of Interest, Public Procurement Irregularities
Criminal Law Civil Procedure Administrative Law Prevention of Organised Crime Act Corruption Money Laundering Forfeiture of Property Conflict of Interest +1 more

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Parties

National Director of Public Prosecutions

Applicant

Gesiena Maria Botha

Respondent

Angelique Botha N.O.

Respondent

Procedural Posture

Forfeiture Application / Final Judgment After Opposed Application

Legal Issues

  1. 1 Whether the property at Erf 3432, Kimberley, and the shares in the Jyba Beleggings Trust are proceeds of unlawful activities or instrumentalities of money laundering and should be forfeited to the State under Chapter 6 of POCA.
  2. 2 Whether any interest in the property ought to be excluded from forfeiture.
  3. 3 Whether the cash payment of R15,000 to Ms Yolanda Botha constituted corrupt gratification.

Ratio Decidendi

The court found that the NDPP had proven, on a balance of probabilities, that the property at Erf 3432, Kimberley, and the shares in the Jyba Beleggings Trust were proceeds of corruption and money laundering. Ms Botha, as Head of Department, abused her position to award tenders to Trifecta in exchange for personal gratification, including home renovations and shareholding for her relatives. The purported loan agreement was a subterfuge, with evidence showing the renovations were paid for by Trifecta and only later recorded as a loan after parliamentary scrutiny. The Jyba Trust shares were a corrupt gift, benefitting Botha's family. The procedural requirements for forfeiture under POCA...

Court Disposition

Application granted. The property and shares are declared forfeited to the State.

Orders

  • The immovable property owned by the estate of the late Ms Yolanda Rachel Botha, Erf 3432, Kimberley, is declared forfeited to the State under sections 48(1) and 50(1)(b) of POCA.
  • The shares in the Jyba Beleggings Trust registered as T156/2010 are declared forfeited to the State under sections 48(1) and 50(1)(b) of POCA.