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[2018] ZASCA 146
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Botha NO and Another v National Director of Public Prosecutions (920/2017) [2018] ZASCA 146 (11 October 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 920/2017
In
the matter between:
GESIENA MARIA BOTHA
NO
FIRST
APPELLANT
(In her capacity as
executrix of
the
late Yolanda Rachel Botha)
ANGELIQUE BOTHA
NO
SECOND
APPELLANT
(In her capacity as
trustee of
the Jyba Beleggings
Trust,
registration
no. T156/2010)
and
THE NATIONAL DIRECTOR
OF
PUBLIC
PROSECUTIONS
RESPONDENT
Neutral
citation:
Gesiena
Maria Botha N.O. & another v The National Director of Public
Prosecutions
(
920/2017
)
[2018] ZASCA 146
(11 October 2018)
Coram:
Majiedt,
Swain, Mathopo, Schippers JJA and Mokgohloa AJA
Heard:
11 September 2018
Delivered:
11
October 2018
Summary
:
Prevention of Organised Crime Act 121 of 1998
– Forfeiture
proceedings in terms of
ss 48
and
50
of the Act – Renovations
of property and donation of shares constitute proceeds of unlawful
activity – Proportionality
enquiry – forfeiture order
against entire property disproportionate – Objective of
forfeiture restated – Not
punishment but removal of incentives
of crime.
ORDER
On
appeal from: Northern Cape Division of the High Court, Kimberley
(Mamosebo J sitting as court of first instance):
The
appeal is upheld to the following extent:
1. The order of the court
a quo declaring the entire property forfeited to the state is set
aside and substituted with the following:
(a)
The first
appellant is ordered to make payment of an amount of R758 014.83
to the state within a period of 6 months from the
date of this
judgment.
(b)
The said
amount must be paid into the criminal assets recovery account number
[…], held at the South African Reserve Bank.
(c)
Proof of
payment must be furnished in writing to the appointed curator bonis,
Mr Johan van Wyk of Enslins Inc, Kimberley.
(d)
Failing
payment as contemplated in para (a) the appointed curator bonis is
authorised to sell the property, Erf 3432, Kimberley,
also known as
12 Jawno Street, Kimberley, by public auction or private treaty, at a
reasonable price to the highest bidder and,
subject to the rights of
secured creditors, to pay the sum of R758 014.83 into the account
mentioned in para (b) above and to disburse
the net proceeds, after
incidental expenses, to the estate late Yolanda Rachel Botha, number
394/2015.
2. The appeal against the
order declaring the shares forfeited to the state is dismissed.
3. The respondent is
ordered to pay the appellant’s costs, such costs to include
costs of two counsel.
JUDGMENT
Mokgohloa
AJA (
Majiedt,
Swain, Mathopo and Schippers JJA concurring)
:
[1]
This is an
appeal against the judgment and orders of the Northern Cape Division
of the High Court, Kimberley, declaring an immovable
property known
as Erf 3432, Kimberley, situated at 12 Jawno Street, Kimberley (the
property), and certain shares forfeited to the
state in terms of the
Prevention of Organised Crime Act 121 of 1998 (POCA). The property is
registered in the name of the late
Ms Yolanda Rachel Botha (the
deceased). The first appellant is the mother of the deceased and the
executrix in her estate. The
shares are held by the Jyba Beleggings
Trust (Jyba Trust)
[1]
and the
second appellant is a trustee of Jyba Trust. The forfeiture order was
granted in terms of s 50 of POCA on the basis that
the property and
shares were proceeds of corruption and money laundering.
[2]
The issues
in this appeal are whether the trial court correctly held that the
property and shares constituted the proceeds of unlawful
activities
as provided in s 50(1)(b) of POCA; and whether it properly declared
that the entire property should be forfeited to
the state.
Background
[3]
The
deceased 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. She was a close and
personal friend of the late Mr Sarel Breda. They were members
of the
African National Congress (ANC). Mr Breda died in a plane crash on 3
March 2009. Mr Breda and Mr Alfeus Scholtz were both
directors and
shareholders of the Trifecta Group of Companies (Trifecta). Mr Breda
held his shares through his family trust, the
Shosholoza Trust.
[4]
The case of
the National Director of Public Prosecutions (NDPP), in summary, was
that between 1 December 2006 and 1 August 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 therefrom
and abusing her
authority, and thus were the proceeds of corruption.
[5]
The
relationship between the deceased and Trifecta was uncovered by the
Mail &
Guardian
newspaper in February 2011. It reported that the deceased and her
family received kickbacks from the company to which she assigned
tenders worth millions when she was an official in the Northern Cape
Province. Within a year of being awarded the tenders, Trifecta
effected renovations to the deceased’s Kimberley home, worth at
least R500 000. The deceased, who subsequently became
a member
of Parliament, did not declare these benefits as she was by law
required to do.
[6]
This led to
an investigation by Parliament and the deceased appeared before the
parliamentary Joint Committee on Ethics and Members’
Interests
(the committee), charged with 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. She
was found guilty on both charges. 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.
[7]
Pursuant to
the investigation and findings of the committee, the state charged
the deceased, Mr Scholtz and others with, inter alia,
offences under
ss 4 and 13 of the Prevention and Combating of Corrupt Activities Act
(the Corruption Act)
[2]
. 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.
[8]
The
deceased gave evidence during the criminal trial but passed away
before the matter was finalized. On 13 October 2015 the high
court
handed down judgment in the criminal proceedings. The court made
adverse findings against her but did not pronounce on her
guilt, as
she had passed away.
The
relevant statutory provisions
[9]
Section
48(1) of POCA provides that the NDPP may apply to a high court for an
order forfeiting to the state all or any of the property
that is
subject to a preservation order. It is common cause that a
preservation order in respect of the property was granted on
29
October 2012 and confirmed on 14 December 2012.
[10]
Section
50(1) provides that the high court shall, subject to s 52 make an
order applied for under s 48(1) if the court finds on
a balance of
probabilities that the property concerned –
‘
(a) is an
instrumentality of an offence referred to in schedule 1; or
(b) is the proceeds of
unlawful activities.’
[11]
Section 217
of the Constitution of the Republic of South Africa provides:
‘
217 Procurement
–
(1) when an organ of
state in the national, provincial or local sphere of government, or
any other institution identified in national
legislation, contracts
for goods or service, it must do so in accordance with a system which
is fair, equitable, transparent, competitive
and cost effective;
(2) Subsection (1) does
not prevent the organs of state or institutions referred to in that
subsection from implementing a procurement
policy providing for –
(a)
categories
of preference in the allocation of contracts; and
(b)
the
protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National
legislation must prescribe a framework within which the policy
referred to in subsection (2) must be implemented.’
The
leases
[12]
It is
necessary to set out in brief, in the paragraphs that follow, the
circumstances under which the leases were granted.
Trifecta acquired
well-constructed but run down commercial buildings predominantly in
towns in the Northern Cape, Free State and
North West Provinces at
low prices. These buildings would be repaired and refurbished and
let.
[13]
During 2005
the South African Social Security Agency (SASSA) was separated from
the Department in the Northern Cape. There was therefore
a need for
office accommodation. The tender process was opened for the
acquisition of such office accommodation. Ms Magdalene Vosloo,
a
senior manager for the Supply Chain Management of the Department was
a member of the Provincial Tender Board from 2004 until
2006. The
deceased appointed her as a member of the Department Bid Adjudication
Committee (BAC). She reported to Mr Thabo Holele
(Mr Holele), the CFO
of the Department who was also appointed as the head of BAC by the
deceased.
[14]
As is shown
below, the deceased ignored tender procedures, ensured that leases on
extremely favourable terms were granted to Trifecta
and knowingly
allowed the Department to pay Trifecta rental, despite the fact that
buildings were not ready for occupation. In
various leases, the
deceased was instrumental in increasing the rental and the tenure of
leases to double the lease period, contrary
to what was approved by
the tender board.
[15]
Trifecta
purchased the old Oranje Hotel building in Upington on 3 March 2006
and it was registered in its name on 3 July 2006. The
deceased
introduced Mr Breda to Ms Vosloo and informed her that Mr Breda was
willing to lease the building to the Department, and
the lease was
signed some six weeks after the deceased’s introduction of Mr
Breda. Given her position, the deceased’s
involvement in the
Upington lease agreement was improper. The commencement date of the
lease was 1 May 2006, but the building was
not ready for occupation
until 1 December 2006. Despite this, the deceased authorised the
payment of rental to Trifecta for the
entire period that the
Department did not have occupation of the building.
[16]
Moreover,
the deceased allowed the rental, annual escalation rate and tenure of
the Upington lease agreement to be increased to
Trifecta’s
advantage, contrary to what had been approved by the tender board.
The commencement rental was reflected as 2965
m
2
at R69.80 per m
2
instead of R49m
2
;
the annual escalation rate was 8% instead of 7.5%; and the tenure of
the lease was 10 years instead of five years.
[17]
The
deceased signed the 14 Van Riebeeck Street, Springbok lease agreement
with Trifecta on 3 November 2006. Trifecta only purchased
the
building six months later – on 19 July 2007 – but the
lease agreement recorded the commencement date as 1 March
2007. In
addition, she changed the annual escalation rate from 8% to 9.5% and
increased the lease period from five to 10 years.
[18]
The
deceased signed the Summerdown Place, Kuruman lease agreement on 14
November 2006. She changed the lease period from five years
to 10
years, after the deceased informed the BAC that Trifecta’s
financier required a longer lease to be able to provide
finance for
the purchase of the building. The deceased increased the annual
escalation rate from 8% to 9.5%. She also increased
the rental from
R40 per m
2
which was the fair market rental value in Kuruman as at 1 February
2007, to R74.10 per m
2
.
[19]
In the Keur
en Geur Building, Douglas lease agreement, the tender board approved
a lease for a floor size of only 205 m
2
.
However, the deceased instructed the Department to enter into a lease
with Trifecta for the entire building – 400 m
2
,
under the pretext that the Department could use the additional office
space as a registry and conference facility.
[20]
The rental
in respect of the lease of floors 5, 6, and a portion of floor 7 of
the Du Toitspan building in Kimberley was increased
from its fair
market rental value of R50 per m
2
as at
1 December 2006, to R65 per m
2
.
The tenure of the lease was five years and Trifecta was given an
option to renew the lease for a further five years. Further,
the bid
for the lease of floors 9, 10 and 11 Du Toitspan building in
Kimberley, was not advertised. The deceased signed the lease
without
the necessary procurement process being followed. In addition, the
Department hired another portion of the same building
from Trifecta
at a substantially higher rental and annual escalation rate, and for
a substantially longer period, than the lease
it had in respect of
the other portions of the same building.
[21]
The
deceased’s response to all of this was that she had acted
consistently with the BAC’s recommendations and wholly
within
her powers, treasury regulations and the supply chain management
policy and in the best interests of government, in facilitating
and
concluding the lease agreements.
[22]
That is not
so. The court a quo correctly held that the deceased had intimate
knowledge of the supply chain management policy and
the regulations
governing the award of tenders. However, she deliberately breached
the regulations in entering into the lease agreements
with Trifecta.
She interfered with the duties of the tender board, and used her
influence as HOD to get the Department to approve
terms highly
favourable to Trifecta, but which were detrimental and not cost-
effective to the Department.
[23]
The
question then arises: why did the deceased favour Trifecta in the way
she did? The reason is not far to seek. Trifecta did renovations
to
the deceased’s home to the value of approximately R1.2 million;
and promised the deceased a 10% shareholding in the Trifecta
Group,
as gratification for the award of lease agreements of some R81
million, as contemplated in s 3 of the Corruption Act.
[3]
The Act defines ‘gratification’ as including, ‘money
whether in cash or otherwise . . . any donation, gift, loan,
fee,
reward . . . or any other similar advantage’ or ‘any
valuable consideration or benefit of any kind’.
[24]
On the
probabilities, this explains why Trifecta instructed its own
contractor to effect the renovations as a Trifecta project,
and why
the costs of the renovations to the deceased’s property were
concealed in Trifecta’s books as expenses incurred
in respect
of Trifecta’s own building. It also explains the deceased’s
attempts to deceive the parliamentary committee
into accepting that
the renovations to the property were financed by a loan of R500 000
that she obtained from Trifecta; and
why that loan was never
reflected in Trifecta’s books prior to the commencement of the
parliamentary enquiry. And the deceased’s
involvement in the
conclusion of the leases also explains why she received the shares:
her explanation that it was out of pure
benevolence and because Mr
Breda was ‘eccentric’, strains credulity. I revert to
these aspects below.
The
renovations
[25]
The
evidence shows that Mr Scholtz instructed Pasch and Malan Builders to
renovate the property and deal with the project as a Trifecta
project. The renovations were carried out from September 2009 to
September 2010. Some of the expenses for the renovations were
entered
by Trifecta in its accounts ledger for the 1 March 2009 to 28
February 2010, as renovations of the Magombos Building, owned
by
Trifecta and used as its Kimberley head office. Later however, this
was changed, supposedly to reflect expenses allocated to
the
deceased. The costs of the renovations were initially estimated at
R500 000 but as the work progressed, the costs increased
to over
R1 million.
[26]
The
deceased’s version was that she required renovations to her
house. The second appellant, who was employed at that time
by
Trifecta, advised her to engage Pasch and Malan building contractors,
who were doing maintenance and construction work for Trifecta.
She
met with Mr Malan who gave her a quotation of R 410 000. She
unsuccessfully applied to a bank for a loan for the renovations.
The
second appellant then advised her to ask for assistance from Mr
Scholtz, which she did. He agreed to grant her a loan until
she
received her pension from government. He advised her that an
acknowledgement of debt would be prepared for her signature.
[27]
According
to the deceased the renovations commenced during September 2009.
However, an acknowledgement of debt in the sum of R500 000
in
favour of Trifecta was signed in Cape Town only on 10 March 2010.
Whilst the renovations were being carried out the deceased
decided to
add other improvements which increased the costs to approximately
R1.2 million. She discussed this with Mr Scholtz who
agreed to
advance additional funds to her. On 20 June 2011 she signed another
acknowledgement of debt in favour of Trifecta in
the amount of
R1 182 410.
[28]
However,
the deceased’s version differed from the one given to the
parliamentary committee. In a letter to the committee in
response to
its request for her to provide the full cost of the renovations, she
indicated that the costs were R500 000 and
that she had obtained
a loan from Trifecta for this amount. However, Mr Malan provided the
committee with invoices which showed
that as at October 2010, the
costs of the renovations were in excess of R1.2 million. When
confronted with these invoices, the
deceased stated that she had made
an error in her letter. She blamed the error on the fact that she had
no legal background. The
committee rejected this explanation: the
deceased was a former HOD responsible for managing a department with
large budgets. She
could not have failed to understand the
committee’s letter requesting her to provide the full costs of
the renovations to
her home.
The
loan agreement
[29]
The
deceased advised the parliamentary committee that she had obtained a
loan in the amount of R500 000 from Trifecta for the
renovations
to the property. On 28 March 2011 Parliament requested a copy of the
loan agreement from Trifecta’s auditors.
However, Ms Pretorius,
a partner in that firm, in an affidavit stated that she was not aware
of any loan agreement between Trifecta
and the deceased and that
there was no record of such loan in the accounting records of
Trifecta.
[30]
Ms
Pretorius saw a copy of the purported loan agreement for the first
time during April 2011, when it was handed to her by another
partner
in the firm. There was a summary of expenses in an amount of R
262 943.21 attached to the loan agreement. The balance
of the
renovations was in the amount of R903 295.06 (R1 166 238.27
– R262 943.21). Ms Pretorius provided
a copy of the
relevant journal entry in Trifecta’s books for the year ending
31 March 2010, which reflected an amount of
R 903 295.06
allocated to ‘[Trifecta] Investment Holdings’ on 28
February 2011. Ms Pretorius also provided the
Trifecta adjusting
journal entries for the year ending 28 February 2011 which reflected
that the amount of R903 295.06 was
re-allocated to ‘Y
Botha’ – the deceased.
[31]
Ms
Pretorius confirmed that the amount of R903 295.06 was initially
allocated as an expense incurred by Trifecta and thereafter
changed
to a ‘loan’ after the enquiry by the parliamentary
committee. She found it strange that the loan agreement,
allegedly
signed in March 2010, was handed to her as auditor only in April
2011. Ms Pretorius was of the view that the allocation
to Trifecta of
the expenses relating to the renovations to the property, was an
irregularity that needed to be reported to the
Independent Regulatory
Board.
[32]
Further, Ms
Buizer, a former office manager at Trifecta, in an affidavit stated
that Mr Scholtz had instructed her to allocate the
costs of the
deceased’s renovations to the Mogambos building, owned by
Trifecta. At no stage was it indicated to her that
the amount
utilised for the renovations was a loan, as she would have followed a
different procedure when capturing those amounts
for accounting
purposes. Ms Falck, who signed the loan agreement as a witness,
stated that she did so at the request of Mr Scholtz.
She did not make
a note of the date on which she signed it. According to Ms Falck, the
agreement was already signed by both Mr
Scholtz and the deceased when
she signed as a witness, and she confirmed that neither of the two
signed it in her presence.
[33]
It is clear
from the above that there was no loan agreement entered into between
the deceased 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.
The
shares
[34]
The
deceased stated that during 2005 she had a long conversation with Mr
Breda in which they discussed their respective upbringing
and
background, politics and community affairs. Mr Breda indicated that
he wanted to donate 10% of his shareholding in Trifecta
to any person
or entity which the deceased chose to nominate.
[35]
At the time
of his passing on 3 March 2009, the deceased had not nominated any
person to whom the shares should be transferred.
The deceased said
that she had forgotten about Mr Breda’s promise until Mr
Scholtz reminded her about it. Mr Scholtz requested
her to nominate
an entity, persons or a trust to be formed for the purpose of taking
over 10% of Mr Breda’s shares in Trifecta.
The deceased
nominated the Jyba Trust to receive the shares. A number of her
relatives were beneficiaries of the Trust.
[36]
Again, this
explanation differed from the deceased’s evidence before the
parliamentary committee. At that enquiry she said
nothing about the
alleged donation by Mr Breda of shares in Trifecta to a nominee of
her choice. Instead, she informed the committee
that the shares were
given to the second appellant by Trifecta Investment Holdings because
she was working there.
[37]
The Jyba
Trust consists of beneficiaries who are all members of the deceased’s
family. Although she denied any link between
her duties as HOD and
the allocation of the shares, it is clear that she directly or
indirectly benefited from those shares, because
her relatives
received rewards from Trifecta.
[38]
The most
plausible and readily apparent inference to be drawn from the facts
outlined above, in particular, the deceased’s
conduct in
favouring Trifecta, is that the renovations to her property and the
donation of the shares to the nominee of her choice,
constituted
gratification for her role in ensuring that the leases were awarded
to Trifecta. This is underscored by her false explanations
relating
to the gratification to Parliament. She also lied about her close
relationship with Mr Scholtz when Mr Malan stated that
‘they
know each other quite well’.
[39]
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.
Proportionality
[40]
Once it has
been established that property was the proceeds of corruption and
money laundering, the next step is to embark on a
proportionality
enquiry. The purpose of the proportionality enquiry is to determine
whether the grant of a forfeiture order would
amount to an arbitrary
deprivation of property in contravention of s 25(1) of the
Constitution.
[4]
In
Prophet
v National Director of Public Prosecutions
[5]
the Constitutional Court held that the proportionality enquiry
requires a general approach of ‘weighing the severity of the
interference with individual rights to the property against the
extent to which the property was used for the purpose of the
commission
of the offence, bearing in mind the nature of the
offence’
[6]
[41]
It was
submitted that the forfeiture of the entire property amounts to an
arbitrary and unconstitutional deprivation of property
in relation to
the first appellant, who had been occupying the property with the
deceased during her lifetime. It was argued that
the court a quo
failed to take into account the fact that the deceased had repaid an
amount of R411 054.66 to Trifecta in
April 2011.
[42]
The court a
quo held that there was no information placed before it that the
first appellant’s monthly income was insufficient
to lease
another property or book herself into an old age or retirement home.
It accepted the evidence that the deceased had acquired
her house
through a mortgage bond with ABSA Bank in 2004 (long before the
events giving rise to the POCA application) and that
she had
maintained regular monthly payments. The court took into account the
valuation provided by the parties, did a mathematical
exercise and
arrived at a figure of R1 927 000.00 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.
[43]
The proper
application of a proportionality analysis weighs the forfeiture and
its effect on the owner concerned against the purpose
that forfeiture
serves. It has been held that the broader societal purpose served by
POCA includes removing the incentive for crime.
[7]
This purpose has been found to be more relevant where one is dealing
with the forfeiture of proceeds of unlawful activities as
in the
present case. The primary purpose of forfeiture is not to punish
offenders, but to remove the incentive for crime (National
Director
of Public Prosecutions v Mohamed NO & others
[2002] ZACC 9
,
2002
(4) SA 843
(CC) para 15). In any event, 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. And,
notwithstanding
this unambiguous stance in the replying affidavit,
the appeal was argued on behalf of the NDPP on the basis that the
entire property
should be forfeited.
[44]
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. Mr Malan calculated
the
renovation costs at R1 169 069.49. Therefore the amount paid by the
deceased has to be deducted from the renovation costs.
[45]
I accordingly find that the forfeiture order made against the entire
property is disproportionate and the appeal must be upheld
in part. I
can find no reason why the costs should not follow the result.
[46]
The appeal is upheld to the following extent:
1. The order of the court
a quo declaring the entire property forfeited to the state is set
aside and substituted with the following:
(a) The first appellant
is ordered to make payment of an amount of R758 014.83 to the
state within a period of 6 months from
this judgment.
((b) The said amount must
be paid into the criminal assets recovery account number 8030 3056,
held at the South African Reserve
Bank.
(c) Proof of payment must
be furnished in writing to the appointed curator bonis, Mr Johan van
Wyk of Enslins Inc, Kimberley.
(d) Failing payment as
contemplated in para (a) the appointed curator bonis is authorised to
sell the property, Erf 3432, Kimberley,
by public auction or private
treaty, at a reasonable price to the highest bidder and, subject to
the rights of secured creditors,
to pay the sum of R758 014.83
into the account mentioned in para (b) above and to disburse the net
proceeds, after incidental
expenses, to the estate late Yolanda
Rachel Botha, number 394/2015.
2. The appeal against the
order of the court a quo declaring the shares forfeited to the state
is dismissed.
3. The respondent is
ordered to pay the appellant’s costs such costs to include
costs of two counsel.
FE
MOKGOHLOA
ACTING
JUDGE OF APPEAL
APPEARANCES
For
the Appellants: M A Albertus SC
G
G M Quixley
Instructed
by: Towell and Groeneald Attorney, Kimberley
Honey
& Partners, Bloemfontein
For
the Respondent: H J van der Linde SC
Instructed
by: The State Attorney, Kimberley
The
State Attorney, Bloemfontein
[1]
Registration No.
T156/2016
[2]
Prevention and
Combatting of Corrupt Activities Act 12 of 2004
[3]
Section 3 of the
Corruption Act provides that:
‘
Any person who,
directly or indirectly -
(a) accepts or
agrees or offers to accept any gratification from any other person,
whether for the benefit of himself or
herself or for the benefit of
another person; or
(b) gives or
agrees or offers to give to any person any gratification, whether
for the benefit of that other person or for
the benefit of another
person, in order to act, personally or by influencing another person
so to act, in a manner-
(i) that amounts
to the-
(aa)
illegal, dishonest, unauthorised, incomplete, or biased; or
(bb)
misuse or selling of information or material acquired in the course
of the exercise, carrying out or performance of
any powers, duties
or functions arising out of a constitutional, statutory, contractual
or any other legal obligation;
(ii) that amounts to-
(aa)
the abuse of a position of authority;
(bb)
a breach of trust; or
(cc)
the violation of a legal duty or a set rules;
(iii) designed to
achieve an unjustified result; or
(iv) that amounts to any
other unauthorised or improper inducement to do or not to do
anything,
is guilty of an offence
of corruption’.
[4]
Mohunram v NDPP (Law
Review Project as Amicus Curiae)
[2006] ZASCA 12
;
2007 (4) SA 222
(CC)
[5]
Prophet v NDPP
2006 (2) SACR 525 (CC)
[6]
Ibid at para 58
[7]
Ibid at fn 4 para
57