The forfeiture order was granted on the basis that the property and shares were the proceeds of corruption and money laundering
THE FAMILY of the late Yolanda Botha has been ordered by the Supreme Court of Appeal to pay an amount of R758 014.83 to the state.
Failure to pay will result in the sale of Botha’s house at 12 Jawno Street.
Handing down his judgment, Acting Judge of Appeal, FE Mokgohloa, ruled that the money must be paid within six months.
The appeal was lodged against the judgment and orders of the Northern Cape Division of the High Court, declaring an immovable property at 12 Jawno Street, Kimberley, and certain shares, forfeited to the state in terms of the Prevention of Organised Crime Act.
The property is registered in the name of the late Ms Yolanda Rachel Botha. The first appellant in the matter is Botha’s mother and the executrix in her estate, while the shares involved are held by the Jyba Trust, of which the second appellant is a trustee of Jyba Trust.
The forfeiture order was granted on the basis that the property and shares were the proceeds of corruption and money laundering.
Botha was the Head of Department (HOD) of the Northern Cape Department of Social Services and Population Development (the Department) from January 2001 until April 2009.
“The case of the National Director of Public Prosecutions (NDPP), in summary, was that between December 1, 2006 and August 1, 2008, the deceased in her capacity as the HOD facilitated and secured the award of tenders involving six lease agreements to Trifecta, to the value of some R81 million, on very favourable terms. In the process she flouted tender procedures to the detriment of the state.
“In return, Trifecta paid for renovations to the property in the order of R1.2 million and the deceased received 10% shares of Trifecta which at the time was valued at R28 million.
“The NDPP alleged that the costs of the renovations to the deceased’s property and shares were gratification for intervening in the procurement process, allowing deviations there from and abusing her authority, and thus were the proceeds of corruption,” Mokgohloa stated in his summary of the background to the case.
An investigation by Parliament’s Joint Committee on Ethics and Members’ Interests (the committee), found Botha guilty on charges of non-disclosure of benefits received from Trifecta and wilfully misleading the committee on the value of those benefits, by submitting a sworn statement which was false.
“The committee found that the renovation of her house was a benefit accrued from an improper or generally corrupt relationship between the deceased and Trifecta. She was also found guilty of wilfully misleading the committee by submitting a false loan agreement in terms of which Trifecta supposedly loaned her R500 000 to pay for the renovations, when in truth, costs thereof exceeded R1.2 million. On the shares, the committee held that these also constituted a benefit which the deceased failed to declare.”
Botha was charged, along with Christo Scholtz and John Block, of offences under the Prevention and Combating of Corrupt Activities Act.
“The state alleged that the deceased, whilst HOD, had circumvented prescribed procurement procedures to ensure that the six lease agreements were awarded to Trifecta; and that she corruptly accepted gratification in the form of renovations to her property, the shares in Trifecta and R15 000 in cash, in exchange for awarding the lease agreements.”
Botha gave evidence during the criminal trial but passed away before the matter was finalised. “The court made adverse findings against her but did not pronounce on her guilt, as she had passed away,” Mokgohloa said.
Mokgohloa pointed out in his judgment that it was clear that no loan agreement had been entered into between Botha and Trifecta for the renovations.
“If there was nothing untoward about the costs of the renovations, why were they concealed under the Trifecta books? The inescapable conclusion is that Trifecta paid for the renovation costs as a gratification to the deceased for the award of lease agreements. Trifecta never intended that the renovation costs would be repaid; and likewise, the deceased had no intention of repaying those costs. This conclusion is fortified by the contradictory versions proffered by the deceased to the parliamentary committee and in these proceedings. The court a quo was thus correct in holding that the loan agreement was created after the fact to cover up the true reason behind the renovations.
“In my view, the court a quo was correct in finding that the costs of the renovations to the deceased’s property which were hidden in Trifecta’s books under the Magombos’ project, and the 10% shareholding transferred by Trifecta to the Jyba Trust, were the proceeds of unlawful activities i.e. corruption and money laundering.”
He stated further, however, that the Northern Cape High Court had failed to take into account the fact that Botha had repaid an amount of R411 054.66 to Trifecta in April 2011.
“The court took into account the valuation provided by the parties, did a mathematical exercise and arrived at a figure of R1 927 000 as the value of the property. It, however, held that since the property was the proceeds of corruption and money laundering, forfeiture of the entire property was not disproportionate. The court then declared the entire property forfeited to the state.”
Mokgohloa, however, went on to explain that the primary purpose of forfeiture was not to punish offenders, but to remove the incentive for crime.
“The NDPP made it clear in his replying affidavit that what was sought in the forfeiture order was not the entire property, but only the value of the renovations. Inexplicably, the high court overlooked this fact.
“I have already found that there was no loan agreement entered into between the deceased and Trifecta. However, it is not disputed that the deceased paid an amount of
R411 054.66 to Trifecta as part of the costs expended on the renovations. The renovation costs were calculated at R1 169 069.49. Therefore the amount paid by the deceased has to be deducted from the renovation costs.”