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

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IN
THE HIGH COURT OFSOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 1825/2012
Heard
on:   29/04/2016
Delivered
on: 29/07/2016
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC

APPLICANT
PROSECUTIONS
And
GESIENA
MARIA BOTHA

FIRST RESPONDENT
(In
her capacity as executrix of
the
late Yolanda Rachel Botha)
ANGELIQUE
BOTHA N.O.

SECOND RESPONDENT
(in
her capacity as joint trustee of
the
Jyba Beleggings Trust)
In
re: Erf 3432 also known as 12 Jawno Street, Kimberley
JUDGMENT
MAMOSEBO
J
[1]
This is an application by the National Director of Public
Prosecutions (NDPP) in terms of
s 48 (1) read with s 50 of the
Prevention of Organised Crime Act, 121 of 1998 (POCA), for a
forfeiture order against the immovable
property of the late Ms
Yolanda Botha who passed away on 24 December 2014, and the value of
shares held by the Jyba Beleggings
Trust (the Jyba Trust) registered
as T 156/2010, alleged by the
NDPP
to be proceeds of crime
(corruption) and an instrumentality of money laundering.
[2]
A
convenient starting point is s 53 of POCA in that the NDPP relied on
it for its application. This section stipulates:
53
Forfeiture order by default
"(1)
If the National Director applies for a forfeiture order by default
and the High Court is satisfied that no person has
appeared on the
date upon which an application under section 48(1) is to be heard
and, on the grounds of sufficient proof or otherwise,
that all
persons who entered appearances in terms of section 39(3) have
knowledge of notices given under section 48(2), the Court
may-
(a)
Make
any order by default which the Court could have made under sections
50(1) and (2);
(b)
Make
such order as the Court may consider appropriate in the
circumstances; or
(c)
Make
no order."
[3]
I
enquired from Adv van der Linde SC, appearing for the NDPP, the
reasons for relying on s 48 r/w 53 of POCA. He maintained that

reference to s 53 was a typographical error. Adv Albertus SC
contended that the reliance on s53 was not done erroneously because

it appears also in the notice of motion. Mr Albertus submitted that
the application should be dismissed based on that basis alone.
For
the reasons that are discussed hereinafter this submission cannot be
sustained.
[4]
In
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd;
National Director of Public Prosecutions
v
37
Gillespie
Street Durhan (Pty) Ltd and Another; National Director of Public
Prosecutions
v
Seevnarayan
2004
(2) SACR 208
(SCA) at 222 e - f (para 8) Mpati DP et Cameron JA made
the following remarks:
"[8]
..
[T]he
forfeiture process starts when the National Director applies ex parte
in terms of s 38 for a preservation order. Section 38(2)
of the Act
provides that the High Court shall make such an order
'if
there are reasonable grounds to believe that the property concerned
-
(a)
is
an instrumentality of an offence referred to in Schedule 1; or
(b)
is
the proceeds of unlawful activities.'"
[5]
On
29 October 2012 Olivier J granted a provisional preservation order in
terms of s 38(2) of POCA preserving the immovable property
Erf 3432
also known as 12 Jawno Street and the shares in the Jyba Beleggings
Trust registered as Tl 56/2010 acquired in the Trifecta
Group. Johan
Van Wyk of Enslins Kimberley Inc, Kimberley, was appointed as
curator
bonis
to
take control of the property. The first respondent, Estate Late Ms
Yolanda Botha and the second respondent, Ms Angelique Botha,

representing the Trust, were afforded an opportunity to oppose the
application for an order forfeiting the property to the State.
They
were to enter an appearance in terms of s 39 (3) of POCA to be
delivered to the applicant, the NDPP,
within
14 days of service
.
Such appearance
must
,
in terms of s 39(5) include the particulars of the address chosen for
delivery of documents and in an accompanying affidavit set
out (i)
the identity of the person entering the appearance, (ii) the nature
and extent of her or his interest in the property,
and (iii)
the
basis of the defence upon which she or he wishes to rely
in opposing the forfeiture order or in having her interest excluded
from forfeiture.
[6]
A
rule
nisi
issued
returnable on 14 December 2012 calling upon the respondents to show
cause, if any, why the provisional order should not be
confirmed. The
respondents were further called upon, in the event of opposition, to
notify the NDPP within 5 days of service of
their intention to oppose
and to deliver answering affidavits as required by law. They were
also afforded an opportunity to anticipate
the return date by giving
the NDPP 48 hours' notice, if so advised.
[7]
In
response to the above provisional order Towell & Groenewaldt
Attorneys wrote a letter dated 22 November 2012 confirming their

instructions to oppose the forfeiture application on behalf of the
late Ms Botha only. They requested or made a suggestion that
the
proceedings against Ms Botha be withdrawn and only be re-instated
after the criminal trial. This request was vehemently opposed
by the
office of the State Attorney in a letter dated 18 October 2012.
Towell & Groenwaldt's letter ended by threatening to
file a
substantive application in the High Court should the NDPP not accede
to their request. What subsequently transpired much
later, is set out
in para 8 (below).
[8]
On
14 December 2012 Lacock J confirmed the rule
nisi
in
respect of both respondents and reserved the costs for later
determination. In a separate interlocutory application Williams
J
granted an order on 03 May 20 I 3 that Ms Yolanda Botha file and
serve her opposing affidavit on or before 30 June 2013 and,
the
applicant was to serve its replying affidavit on or before 20 July
2013. Ms Botha only deposed to her answering affidavit on
29 July
2013. When the applicant filed its replying affidavit in respect of
the first respondent the second respondent had not
yet filed any
answering affidavit.
[9]
It
was therefore procedurally permissible for the NDPP to seek a
judgment by default in terms of s 48 r/w 53 on the basis of non­

opposition by both respondents. Procedurally, there was no opposition
by Ms Botha within the prescribed timeframes. The indulgence
through
the extension of the period within which to file the answering
affidavit was granted after a substantive application was
considered
by the Court. There is no merit in the submission by Mr Albertus that
this application should be dismissed on the basis
that the NDPP
relied on s 53 of POCA.
[10]
The point must be highlighted at this stage that Ms Angelique Botha,
the second respondent, has not
entered any appearance to oppose the
forfeiture order as required by s 39 (3) of POCA. As a result she
could not appear when the
matter was argued. It was incorrect
therefore for Mr Albertus to state that he is appearing for both
respondents. The heads of
argument were also confined to the late Ms
Botha's case.
[11]
The
issues that come up for determination are:
11.1
Whether the property, Erf 3432 Kimberley also known as 12 Jawno
Street are proceeds of unlawful activities,
namely, corruption, or an
instrumentality of money laundering and should be forfeited to the
State under Chapter 6 of POCA.
11.2
Whether the value of the shares in the Jyba Trust are proceeds of
unlawful activities, namely, corruption,
or an instrumentality of
money laundering and should be forfeited to the State under Chapter 6
of POCA. And
11.3
Whether any interest in the property ought to be excluded from
forfeiture.
11.4
As far as the cash payment by Trifecta in the amount of RI 5 000.00
to Ms Yolanda Botha is concerned
this aspect is dealt with below at
paragraph 36.
[12]
Ms
Yolanda Botha, as stated earlier, has since passed away on 28
December 2014. On 22 October 2015 the Master of the High Court

appointed her mother, Ms Gesiena Maria Botha, as executrix to
administer her estate under Letter of Executorship Estate No
394/2015,
hence her citation. The second respondent was the late Ms
Yolanda Botha's niece, Angelique Botha NO, cited in her official
capacity
as the trustee of the Jyba Beleggings Trust who, I
reiterate, has filed no opposition.
[13]
The
historical background is as follows. This investigation came to light
as a result of a newspaper article in the Mail & Guardian
dated
11 - 17 February 2011 which read:
"Ms
Botha and her family received kickbacks from a company to which she
assigned tenders worth R50 million when she was an
official in the
Northern Cape. Within a year Trifecta also renovated Ms Botha's
Kimberley home for at least R500 000.00. Ms Botha
has not declared
either benefit to Parliament.
"
Members
of Parliament are required to declare all 'registrable interests' and
'benefits in cash or in kind' in terms of paragraph
7(g) of the Code
of Conduct for Assembly and Council Members. Parliament investigated
the complaint and also relying on the obligation
placed before them
by s 34 of POCA reported the matter to the South African Police
Services for their investigation.
[14]
Ms
Botha was the Head of the Department (HOD) of Social Development
(Dept Soc Dev) and as such its Accounting Officer. It is common
cause
that she was a close friend to the late Mr Sarel Breda who died in a
plane crash on 03 March 2009. Ms Botha and Mr Breda
were both members
of the African National Congress (the ANC). Mr Breda was a business
associate of Mr Alfeus Scholtz, the Chief
Executive Officer of the
Trifecta Investment Holdings (Pty) Ltd, a holding company to 29
Trifecta Group of Companies.
[15]
Mr
Scholtz approached Mr Breda in 2005 to participate in the business of
leasing office space. Mr Breda was responsible for all
the
operational aspects of the business. He promised Ms Botha shares in
2005, when she was an HOD, for no value or consideration
and
subsequently advised Mr Scholtz that the 10% shareholding in Trifecta
Investment Holdings (Pty) Ltd be transferred to a trust
nominated by
her. The Shosholoza Trust later transferred its 10% shareholding to
the Jyba Trust which held the so­ called BEE
component of the
shareholding. The Shosholoza trust comprised the Jyba Trust and
Scholtz's Casee Trust which is his family trust.
The NDPP argued that
Ms Botha not only introduced but also allowed material and irregular
deviations from the legal procurement
procedures in awarding the six
(6) lease agreements in favour of the Trifecta Group. The NDPP
submitted that she corruptly accepted
the gratifications in exchange
for the already awarded lease tenders which she should have refused.
[16]     Gratification
is defined in the Prevention and Combating of Corrupt Activities Act,
12 of 2004
(the PCCA Act) as:
"(a)
Money, whether in cash or otherwise;
(b)
Any donation, gift, loan, fee, reward, valuable security, property or
interest in property of any description,
whether movable or
immovable, or any other similar advantage;
(j)
Any valuable consideration or benefit of any kind, including any
discount, commission, rebate,
bonus, deduction or percentage.
"
[17]
The Trifecta Group, according to Scholtz, acquired 'well-constructed
but run down' buildings within
the Northern Cape Province. Malan &
Pasch Building Contractors renovated the buildings which were
subsequently leased to the
government departments at lucrative but in
fact exorbitant rates. Mr Breda negotiated the leases on behalf of
the Trifecta Group
of Companies. The leases were approved and signed
by Ms Botha, as HOD and accounting officer of the Dept Soc Dev. The
contention
by the NDPP was that there was no transparency,
competitiveness, fairness and cost efficiency when processing these
lease agreements.
This, the NDPP submitted, was not only corruptly
done but Ms Botha had a clear conflict of interest which warranted
that she should
have recused herself from the procurement processes
but never did.
[18]
Section 217 of the Constitution of the Republic of South Africa 108
of 1996 as amended stipulates:
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 services, 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.
"
[19]
It
is the NDPP's case that when the Trifecta Group made the 10% shares
available to a trust nominated by Ms Botha that was an offer
of
gratification to her with the aim of influencing the granting of the
leases. Once the leases were granted to Trifecta her reward
was in
the form of the refurbishment to her home. This was in addition to
the 10% shares to the Trust which she had nominated.
The NDPP further
submitted that the shares were a corrupt gift which the second
respondent, Angelique Botha NO as trustee, was
silent about why they
were transferred to her as a beneficiary.
[20]
In
the unreported judgment of
State
v
Alfeus
Christo Scholtz and 11
Others
K/S
20/2013 delivered 13 October 2015 at 24 para 66 Phatshoane J said the
following:
"[66]
The late Ms Botha, who was the Head of Department of Social
Development (HOD) together with other functionaries
were copied a
letter dated 12 July 2005 which the then Northern Cape Premier
,
Ms
E D Peters, sent to the MEC for Agriculture. Ms Botha confirmed
receipt. In this letter, which came to be crucial at all stages
of
this trial, the Premier, inter alia, referred to Chapter 13 sub-para
13.2.4 of the Treasury Regulations promulgated in terms
of the Public
Finance Management Act, 01 of 1999 (PFMA), which provided that the
accounting officer of an institution may enter
into lease
transactions without any limitations provided that such transactions
were limited to operating leases. The Premier directed,
with
immediate effect, that the HOD and Accounting Officer of the
Department of Transport Roads and Public Works cease to enter
into
any lease agreements on behalf of other Provincial Departments in due
observance of the PFMA and its Regulations. The Department
of
Transport, Roads and Public Works would advise the departments on how
best and effective to utilise the available space in terms
of the
National Public Norms and Standards. It is common knowledge or
notorious fact that an HOD holds the rank of a Deputy Director

General and the most senior functionary of a department subordinate
only to a Director-General in the office of a Premier.
"
[21]
The
learned Judge continued at para 67:
"[67]
On May 2005 a Chief Director Norms and Standards of the National
Treasury issued the Practice Note
Number SCM 2 of 2005 to, inter
alia, all accounting officers of the National Departments and chief
financial officers of Provincial
Departments on Supply Chain
Management (SCM): Threshold values for procurement of goods and
services by means of petty cash, verbal/written
price quotations and
competitive bids. It required accounting officers and/or authorities
to invite competitive bids for all procurement
of goods and services
above the threshold of R200 000.00. It further stipulates, for
instance, that competitive bids should be
advertised in at least the
Government Tender Bulletin and other appropriate media should an
accounting officer/authority deem it
necessary to ensure greater
exposure to potential bidders; should it be impractical to invite
competitive bids for specific procurements,
e.g in urgent or
emergency cases or in a case of a sole supplier, the accounting
officer/authority may procure the required goods
or services, in
accordance with Treasury Regulation l 6A6.4 by other means, such as
price quotations or negotiations. The reasons
for deviating from
inviting competitive bids should be recorded and approved by the
accounting officer/authority or his/her delegate."
[22]
Based on the aforementioned, it is unquestionable that Ms Botha had
intimate knowledge of the Supply
Chain Management or the National
Treasury Regulations hence the NDPP's submission that the
gratification to Botha was made in order
to ensure that the lease
agreements were awarded to the Trifecta Group and overlook other
potential bidders on terms which favoured
the Trifecta Group. This
was done despite the fact that the result contravened the Supply
Chain Management and National and Provincial
Treasury Regulations to
the prejudice of government.
[23]
Ms
Botha was the owner of the property at 12 Jawno Street, Kimberley.
She acquired it at R705 000.00 through a mortgage bond which
was
granted by ABSA Bank. She needed to renovate this house and Mr Breda,
having been made aware of her plight, advised her to
approach Mr
Scholtz who, not surprisingly, agreed to assist her financially.
Although Ms Botha stated in the criminal trial and
to Parliament that
she resorted to Mr Scholtz for a loan to renovate her said immovable
property since her application to the bank
was unsuccessful the
following factors are inconsistent with that contention:
23.1
Ms
Botha's application to ABSA Bank was only made in May 2011, months
after the parliamentary investigation had commenced and the

renovation had been completed;
23.2
Repayment
of the loan to the Trifecta Investment Holdings was done only after
the parliamentary investigation;
23.3
The
loan certificate was only issued on 28 February 2010, after the
parliamentary investigation commenced, and recorded that Y Botha
owed
the Trifecta Group R262 943.00;
23.4
Angelique
Botha (Botha's niece and trustee in the Jyba Trust) was appointed in
2006 at Trifecta as liaison conduit between Trifecta
and government
departments;
23.5.
Ms Botha resigned only in May 2009 as HOD to become a Member of
Parliament;
23.6
Renovations
to Ms Botha's house commenced in September 2009
to
September 2010 and were done by the Trifecta Group of companies'
contractor, Pasch & Malan;
23.7
The
spurious written agreement between Mr Scholtz and Ms Botha was only
entered into 6 months after the renovations had already
commenced;
23.8
Ms
M Buizer, a former office manager at Trifecta Investment Holdings for
the period 2005 to 2010 deposed to an affidavit in which
she claimed
that Scholtz instructed her to allocate the costs of Ms Botha's
renovations to the Mogambos Building, a building owned
by the
Trifecta Group.
At
no stage was it indicated to her that the amount utilised for the
Botha renovations was a loan
as
she would have followed a different procedure when capturing those
amounts. This aspect is supported by Ms Pretorius at para
27 below.
[24]
In
the purported loan agreement between the Trifecta Group and Ms Botha
it was recorded that she admitted and signed for a loan
to the total
amount of R500 000 however the total costs towards renovations of her
property were ultimately estimated at
R1
169 069.49
(as
it appears on the table provided by Mr Sean White and as argued by Mr
Van der Linde). Mr Albertus recorded the figure in his
heads of
argument as
R1
265 611.99.
Mr
Malan, the contractor who conducted the renovations, stated
"nadat
enkele korreksies op 21 Junie 2011 aangebring is was my beraming van
totale koste
R1
232 128.09."
Ms
Botha confirmed to Parliament that the figure submitted by Mr Malan
of just over R1.2 million was correct. Despite the differences
in
these figures, the amount remains in excess of R1 million rand and
exceeds the R500 000.00 by more than 100% of what was set
out in the
spurious loan agreement purportedly entered into in March 2010. The
NDPP submitted that the correct amount of the loan,
computed by its
witness, Mr White, should be accepted as the lesser sum of
R1
169 069.49.
[25]
The NDPP argued that the mere fact that the so-called loan was
reflected in the Trifecta books "after
the fact" is
indicative thereof that the conduct of Ms Botha and the Trifecta
Group was not
bona fide
and genuine. In other words, a false
entry was made. Ms Botha repaid a portion of the so­ called loan
on 09 April 2011 by utilising
her Government Employees Pension Fund
in the amount of
R371 054.66
and a further
R40 000.00
was
paid on 28 April 2011. This means that only a total amount of
R411
054.66
was repaid. She therefore still owed Trifecta in excess of
R800 000.00
excluding interest.
[26]
It is interesting to note that Ms Falck, the witness who allegedly
appended her signature to the last
page of the purported loan
agreement between Mr Scholtz and Ms Botha, was not present when they
both signed the alleged agreement
in Cape Town. She was presented
with an already signed document by Mr Scholtz and signed it in
confirmation that the signature
appended on the document, to her
knowledge and belief, was Mr Scholtz's. She was requested by him to
verify it as such.
[27]
The Trifecta Group auditor, Ms Anneke Pretorius, a partner at Vos,
Steyn, Van Zyl Inc deposed to an
affidavit on behalf of the NDPP
(having . been afforded indemnity as a witness in terms of
s 204
of
the
Criminal Procedure Act, 51 of 1977
). According to her as at 28
March 2011, a year after the purported loan agreement had been
concluded on IO March 20 l 0, she was
unaware of the loan between Ms
Botha and Trifecta when she was confronted with parliamentary
questions. There was no record or
accounting of the loan in the
company books. She confirmed that the amount was initially allocated
as an 'expense' but changed
and reflected as a 'loan' after the
parliamentary enquiry. According to her this conduct constitutes an
irregularity which is reportable
to the Independent Regulatory Board
of Auditors (IRBA). There were no specific terms regulating the
repayment of the purported
loan and the consequences of failure to
pay.
[28]
What is further inexplicable is that the expenses for the Botha
property renovations were channelled
by the Trifecta Group on the
Supplier Detailed Ledger through another project known as "Magambos",
a building owned by
the Trifecta Group situated in the Northern Cape,
and thus creating the impression that it was a Trifecta Group
project. If there
was nothing untoward pertaining to this loan and
the renovation, why would it be necessary to conceal it under the
Magambos project
if not for obfuscation? In addition why was the
extensions and refurbishments not preceded by a proper loan agreement
instead of
putting the cart before the horse, so to speak. Mr Van der
Linde submitted that this was a money­ laundering scheme but Mr
Albertus' explanation was that the costs of the renovations were not
disguised but were captured incorrectly. Counsel did not elaborate
by
whom the incorrect capturing was done. There is no merit in the
latter submission. Malan & Pasch, contractors, were directed
by
Mr Scholtz to renovate Ms Botha's property with no limit to the
budget. By parity of reasoning that explains why the contractor
was
not confined to R500 000.00 but over a million rand which was fully
paid for by the Trifecta Group was outlaid.
[29]
Ms
Botha deposed to an affidavit on 04 February 2013 disclosing the
basis of her defence to the forfeiture order, "PMIO".
Her
interest related to the immovable property only. She said the
following pertaining to the Jyba Trust:
“
Since
I am neither a beneficiary nor a trustee in the Jyba Trust, I have no
legal interest therein and as such am not affected by
the provisional
preservation or any forfeiture order which the applicant may later
seek in respect thereof.”
She
further stated: “
Since I was advised that there would be no
benefit for me, either financial or otherwise, to oppose the
finalisation of the provisional
order in respect of the immovable
property, I did not oppose the confirmation of the provisional order
in respect of the immovable
property on the return day.”
The
Oranje Hotel Upington Lease Agreement
[30]
Ms
Botha's explanation pertaining to the Upington lease agreement (the
Oranje Hotel) was that she and Mr Holele, as the Chief Financial

Officer, wrote a letter to the Provincial Tender Board dated 28 March
2006 requesting the Board's approval to enter into the lease

agreement with the Trifecta Group. The Board purported to approve the
request by letter dated 24 March 2006 (there must be a mistake
with
the date of the 24th appearing on YRB 13). The Board, however,
remarked that Ms Botha has already approved the request as
the HOD on
29 March 2006. Notwithstanding the premature and irregular approval
by Ms Botha the Board, evidently misled, misguidedly
"ratified"
her flawed approval. The publication for this lease was in the
Gemsbok newspaper only, pursuant to the scheme
devised by Mr Breda
and Ms Botha. See below.
[31]
The
NDPP, on the Oranje Hotel Building project, submitted that it was not
only irregular but also incorrect for Ms Botha to introduce
Mr Breda
to Ms Vosloo, an official in the department who was also a member of
the committees, that Mr Breda was the owner of the
Oranje Hotel
Building. According to "PMT 11" the parties to the lease
agreement were the Trifecta Trading 434 Property
5 (Pty) Ltd,
Registration 2006/004455/07, represented by Mr Breda and The Northern
Cape Province (Dept Soc Dev) represented by
Ms Botha in her capacity
as the HOD. The Trifecta Group purchased the building on 03 March
2006 but it was only registered in the
name of Trifecta Trading 434
Property 5 (Pty) Ltd on 03 July 2006. Of significance is that the
lease agreement had already been
entered into between Ms Botha and Mr
Breda on 20 March 2006. The flawed agreement was further concluded
even before Ms Vosloo submitted
her proposals to Ms Botha for
approval. What is further disturbing and was deflected by Ms Botha is
that although the commencement
date was 01 May 2006, the building was
not ready for occupation until 01 December 2006 and in the meantime
the Trifecta Group was
paid for the period of non-occupation. In
essence, the Trifecta Group fraudulently sold to the Department
something that they did
not have.
The
Springbok Lease Agreement
[32]
The
Springbok lease agreement, Trifecta Trading 434 (Pty) Ltd, was the
sole bidder. Its bid was found to be invalid. Ms Botha granted

permission for a fresh tender bid for one week in three newspapers.
She relied on Clauses 16A6.3(c) and 16A6.4 of the Northern
Cape
Supply Chain Management policy which stipulate:
"16A
6.3 The Accounting Officer or Accounting Authority must ensure that -
(c)
bids
are advertised in at least the Government Tender Bulletin for a
minimum period of 21 days before closure, except in urgent
cases when
bids may be advertised for such shorter period as the Accounting
Officer or the Accounting Authority may determine;
16A
6.4 If in a specific case it is impractical to invite competitive
bids, the
Accounting
Officer or Accounting Authority may procure the required goods or
services by other means, provided that the reasons
for deviating from
inviting competitive bids must be recorded and approved by the
Accounting Officer or Accounting Authority."
Ms
Botha admitted that she entered into the lease agreement with the
Trifecta Group for the Van Riebeeck Building on 03 November
2006. She
denied having changed the annual escalation rate from 8o/o to 9.5%
and stated that it was the recommendation of the Bid
Evaluation and
Bid Adjudication Committees. She however acknowledged changing in her
handwriting the lease period from five (5)
years to 120 months [10
years] with an option to renew for another 120 months [10 years]
adding that
'it makes sense since it will provide institutional
stability for the department.'
The NDPP further pointed out,
correctly in my view, that although the lease agreement was entered
into with the Trifecta Group on
03 November 2006 the building was
only purchased by the Trifecta Group on 19 July 2007.
The
Kuruman Lease Agreement
[33]
Ms
Botha admitted having signed the Kuruman Lease Agreement (Summerdown
Place) entered into with the Trifecta Group on behalf of
the
Provincial Government on 14 November 2006. She maintains that she was
approached with a revision request by the Bid Adjudication
Committee
to change the lease period from 5 to 10 years and the annual
escalation rate from 8% to 9.5%, provided that the Trifecta
Group
installed an alarm system. On this aspect the NDPP stated that Ms
Botha unlawfully interfered with the functioning of the
Bid
Adjudication Committee. This submission cannot be validly gainsaid.
The
Douglas Lease Agreement
[34]
In
as far as the Douglas Lease Agreement is concerned (the Keur and Geur
building) Ms Botha claimed that although the Department
only needed
205m 2 she ultimately agreed with the Shosholoza Trust, which
was
the sole bidder, for 400m
2
.
She
averred that the additional space could be utilised as a Reception
Area, Conference Facility and a Registry. She is the one
who
recommended to the Bid Adjudication Committee to conclude the lease
with the Shosholoza Trust. The NDPP submitted that Ms Botha
once
again unlawfully interfered with the functioning of the Bid
Adjudication Committee and unlawfully ignored the Committee's

recommendations. I agree.
The
Kimberley Lease Agreement
[35]
Ms
Botha had the following to say regarding Floors 5, 6 and a portion of
Floor 7, Du Toitspan Building, Kimberley Lease Agreement:
The
Department needed offices for new staff, she claimed. She says that
she consistently acted within the recommendations of the
Bid
Evaluation committee. She signed the lease agreement on 25 April 2007
. As regards Floors 9, 10 and 11 Du Toitspan Building,
Kimberley, she
maintained that additional space was required to accommodate
officials relocating from the Provincial Headquarters.
She says:
"I
presently do not have access to the documents surrounding the
acquisition of the additional space on floors 9, 10 and 11
in the Du
Toitspan Building, but would imagine that the necessary procurement
processes would have been followed in order to secure
the additional
space.
"
The
NDPP correctly pointed out that the escalation rate of this lease
agreement signed by Ms Botha exceeded what the Bid Adjudication

Committee sanctioned. Ms Botha's actions were again clearly devious.
[36]
Having
had regard to the entire evidence and the relationship between
Trifecta, the late Mr Breda, and the late Ms Botha, I am satisfied

that the Rl5 000 was a payment corruptly made to Ms Botha. The
reasons for my finding are the following:
36.1
The
money was paid in cash and not by cheque or electronically
transferred to leave a paper trail. If nothing was untoward the
payment would have been so made out to the ANC.
36.2
As
Phatshoane J found at para 202 of her judgment the account details of
the ANC were already known to Trifecta when the R15 000
was paid.
There was therefore no reason for Trifecta to pay the money directly
to her. Phatshoane J in the said para 202 remarked:
"Mr
Herman Willemse, called by Ms Botha, knew of only two donations that
Mr Breda made to the ANC. One was late in 2008 and
the other in that
morning of his death. Both these donations were made electronically
to the ANC Provincial Fundraising Account.
It is therefore strange
that RI 5 000.00 was delivered by hand to Ms Botha."
36.3
Phatshoane
J continued as follows in para 204 - 208:
"[204]
Ms Potgieter, a branch treasurer of the ANC, explained that donations
received by a branch are reported at the
next meeting of the branch
and recorded. She testified that every rand and cent received must be
accounted for. Through their training
which had been offered by the
provincial treasurer they know they have to note their income and
expenditure.
[205]
Mr Scholtz intimated that the R15 000.00 was recorded as an expense
in the financial records of Trifecta
but could not specify where that
had been recorded save to state that he did not go back to search
whether it was recorded as a
donation or left as an ordinary expense
in the books. Mr White could not find that the amount R15 000.00 had
been recorded anywhere
in the Trifecta's financial records.
[206]
In my view it is probable that the R15 000.00 was not intended for
the ANC coffers but for Ms Botha. It
is probable that Willemse did
not record the money because it was simply not given to him. I am
also satisfied that the letter
purporting to be from the ANC,
thanking Trifecta for the donation, was manufactured to justify the
cash payment that Mr Malan brought
to Ms Botha. According to Mr
Scholtz Maggie Buizer was an employee of Trifecta Holding (accused No
3). He cannot exculpate himself
because he was the controlling mind
of Trifecta when the cash was paid to Botha. The payment goes back to
the leases that Ms Botha
concluded for the benefit of Trifecta and
was corruptly given with this mind.
[207]
I am satisfied that the State proved its case beyond a reasonable
doubt on the main count 8. The accused
's version that they were not
involved in any corrupt relationship cannot reasonably possibly be
true. [208] In the result: Mr
Scholtz (accused No 1), accused No 2,
No 3, No 4, No 5, No 6, and No & are found guilty of corruption
on the main Count 8."
[37]
Ms
Botha was accused No 8 in the criminal trial. In Counts 1 - 5 she was
charged with the offence of the contravention of the
Public Finance
Management Act 1 of 1999
; Count 6 of corruption, Counts 8, 9, 10, 11,
12 and 13 of fraud and Count 34 of money laundering. Although she was
not convicted
due to her untimely death counsel for the NDPP urged
that it is permissible for a Court dealing with a POCA forfeiture
application
to have regard to adverse findings made in a criminal
trial. He specifically identified what Phatshoane J held in the
unreported
judgment in
State
v
Alfeus
Christo Scholtz and 11 Others
KIS
20/2013
delivered 13 October 2015 at paras 87 - 89, 119, 120, 124 - 127, 134,
138, 143, 147, 154, 160 - 199 and 201 - 206. Mr Albertus
protested
that the criminal proceedings may still be the subject of an appeal.
From the premise that Ms Botha was legally represented
and had
already closed her case after testifying and having called witnesses
to testify on her behalf in the criminal proceedings
there was a
prima facie case against her. The criminal trial was at the stage of
argument on merits when she passed away. I upheld
the submissions by
the NDPP's counsel. Mr Albertus made the following submission:
"There
is nothing implausible about the deceased's testimony that Breda was
a man of philanthropic bent and that his
donation
of
the 10% shares to a trust to be nominated by the deceased, was purely
an act of generosity.
"
This
submission goes against the very grain of a corrupt-free society. An
inexplicable donation to a person occupying a position
of power,
authority and influence makes it highly undesirable and even
unlawful, particularly where laws, regulations, rules and
policies
were willy-nilly broken and ignored.
[38]
What
the above submission does not disclose is succinctly captured in
Phatshoane J's judgment at para 188:
"Jyba
Trust holds 10% shares in the Trifecta 's umbrella company, Trifecta
Investment Holdings, accused No 2. Its trustees
are Ms Angelique
Botha and Mr Ettienne Jacques Naude. It has five capital and income
beneficiaries nominated by Ms Botha. It is
common cause that these
beneficiaries are related to her in that they are her brother's and
sister's children. She could not give
any plausible explanation
concerning this nepotism except to say that Angelique Botha was
already working for Trifecta and all
the beneficiaries had to work
hard to earn their benefits.
"
[39]
The
learned Judge continued at para 190:
"Mr
Scholtz deposed to an answering affidavit in opposition to the
application by the trustees of Shosholoza Trust referred
in the
preceding paragraph. At para 31.5 thereof he declares:
'Although
the Shosholoza Trust was registered as a shareholder of 55% of the
shares in the first respondent [accused No 2 in this
case],
the
Shosholoza Trust represented by the deceased /Mr Breda) /tad, to my
personal knowledge, in 2005 undertaken to transfer a 10%
shareholding
in the first respondent to the nominee of Yolanda, who was a close
friend of the deceased and influential in
political
circles.
She
had not yet nominated the entity to which the shares should be
transferred at the time of the deceased 's death, and hence the

reference to the "YB Trust" [''YB" stands for Yolanda
Botha] in the spreadsheet. That 10% shareholding is also reflected
in
the organogram, annexure "CS3" which I had handed to and
discussed with the first applicant at our meeting in March
2009, and
was at no time queried or disputed by any of the applicants.
'"
[40]
What is also noteworthy is the finding by Phatshoane J at para 200 in
relation to the shares:
"
When
Mr Scholtz effected the transfer of the shares he knew that Ms Botha
had been the HOD. A powerful position from which she even
sneered at
her MEC's admonition. Mr Scholtz was keenly aware of the value of the
relationship established between Mr Breda and
his influential friend
in the political circles, Ms Botha. It makes no sense that he
transferred the I0% shares to Ms Botha's nominated
trust without
enquiring who the beneficiaries were. I am sceptical that he was keen
to further a BEE empowerment project as he
sought to portray. My
overall view is that Mr Scholtz and his relevant accused entities
corruptly benefited Ms Botha.
"
[41]
Mr
Albertus submitted that should I be inclined to consider the Judgment
by Phatshoane J, then I must also look at the evidence
of Ms Vosloo
and Mr Holele because they exculpate Ms Botha. Phatshoane J recorded
the following at paras 124 and 125:
"[124]
A memo dated 23 October 2006 was directed to Ms Botha. The memo was
signed by Mr F Mouton, the Chairperson of the BEC
and recommended on
30 October 2006 by Mr Holele, the Chairperson of the BAC. The memo
set out the comparison between the two bidders
based on points scored
for the price and equity ownership. In total Trifecta scored
97.16
out of 100 whereas TEB 54.15. The memo proposes that the Trifecta bid
be accepted and that two aspects be negotiated with
the proprietor
viz: the lease period of five years with an option to renew for
another five years (60 months) and the installation
and maintenance
of the electronic alarm system. Ms Botha approved this memo on 30
October 2006 and wrote on the memo in longa manu:
'With proviso that
the
lease period be extended to 10 years (120 months) with an option to
renew for another 10 years and a 9.5% annual escalation.'
Mr Holele
does not know why Ms Botha increased the escalation rate. He
intimated that the committee was uncomfortable with the
increase in
the lease period and the escalation rate. They sought advice from an
official of the Provincial Treasury, Ms Phillia
Potgieter, who sat in
their meeting. Ms Botha could not say why she increased the annual
escalation rate to 9.5% when the service
provider had offered 8% save
to give a lengthy evasive response. She ended saying that this was
also to give institutional stability
in Kuruman. How the escalation
will bring institutional stability escapes me because deviousness was
evident.
[125]
Ms Vosloo directed a letter dated 31 October 2006 to Ms Botha, headed
"Rationale
for recomme11di11g a five year lease period instead of 10 years
ill
respect
of office accommodation."
Ms
Vosloo intimated that Ms Phillia Potgieter, the manager supply chain
at Provincial Treasury, reported at the meeting of the BAC
that the
MEC for Finance and Economic Affairs was critical of the 10 or 15
year leases and that it was concluded at the Provincial
Treasury that
the leases in excess of five year period are to be discouraged. This
much was confirmed by Ms Potgieter. Therefore,
Ms Vosloo says that
the BAC deemed it necessary to propose a five year lease period with
an option to renew for another five years.
Ms Botha testified that
she was not bound by the MEC's comment. Ms Botha was drifting towards
becoming a law unto herself Be that
as it may, by way of a memo dated
06 November 2006, six days later, Ms Vosloo directed a letter to Ms
Botha headed: 'Revised decision
regarding the lease period by the BEC
based on the new evidence.
'
It
boils down to this: Trifecta submitted their financier's conditions
for financing the purchasing of the leased property. The
financier
prescribed a minimum period of 10 year lease. Ms Vosloo then states:
'Based
on this evidence the Bid Adjudication Committee recommends that the
lease period of ten (10) years offered by Trifecta Trading
434
Property (Pty) Ltd be accepted. The previous recommendation of five
year lease period is hereby revoked. In order to facilitate

installation of an electronic alarm system the annual escalation is
to increase from 8% to 9.5%."
It
is evident that the BEC and BAC had become malleable, conformist and
shirked their accounting responsibilities.
[42]
Mr
Holele deposed to an affidavit dated 19 April 2012 and stated in
para7.5 thereof that: "J do not know why Botha increased
the
escalation to 9.5% and noted the increase of the lease period to ten
years, similar to the lease period for the building in
Springbok. "
[43]
Ms
Botha's excuse was that the 10% shareholding in the Trifecta
Investment Holding was a donation made by Mr Breda to nominee/s
of
her choice which could be any person or entity. She says it was not
specified to what class or kind the nominee should belong.
She then
exclusively nominated her relatives as trust beneficiaries: Angelique
Botha (the second respondent), Jacqueline Louisa
Botha, Nicole
Yolanda Mariska Arlow, Anthony Christopher Arlouw and Adea Tama
Botha. The trustees were Ms Angelique Botha N.O and
Mr Etienne
Jacques Naude N.O, an attorney. She denied any link between her
duties as accounting officer of the then Dept Soc Dev
and Mr Breda's
donation. According to her the first lease agreement was entered into
in 2006 and Mr Breda's undertaking for that
donation only took effect
during April 2009, after she had already left the department.
[44]
Ms
Botha's explanation ignores the fact that the donation by Mr Breda
was not disclosed to parliament until being extracted and
prodded to
do so through parliamentary questions during March 2011.
It
is my finding that the shares directly or indirectly benefitted Ms
Botha personally because her relatives (nieces and nephews)
received
the rewards from the Trifecta Group. This was a benefit derived as a
result
of
her
political influence and her position as the Head of Department. She
only selectively approved applications by the Trifecta Group
to the
detriment of other competitors and government and contrary to the
prescripts in s 217 of the Constitution of the Republic
of South
Africa Act, 108
of
1996.
[45]
Section
3 of the Prevention and Combating of Corrupt Activities Act, 12 of
2004 (the PCCA Act) stipulates:
"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 other 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, statutorily, 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 of 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 the offence of corruption.
"
[46]
The
NDPP argued that the making of the I0% shareholding available to Ms
Botha was an offer of gratification to her in order to influence
her
to grant the said leases to the Trifecta Group. A further reward to
her came in the form of the renovation of her home. The
gratification
was hidden. Counsel submitted that this was also a money-laundering
devise by the Trifecta Group because the money
was hidden through
another project to avoid detection as the so-called loan agreements
were drawn up much later as a subterfuge.
The concealment is
confirmed by the fact that Ms Pretorius, the Trifecta Group
Accountant, did not know about the loan and it was
not even reflected
in the company's accounting records. When it was belatedly recorded
it was initially reflected as the Trifecta
Group's expense in the
amount of R500 000.00 but later the word "expense" was
changed to "loan" after a parliamentary
enquiry. This was a
deception.
[47]
Section
13 of the PCCA Act: Offences in respect of corrupt activities
relating to procuring and withdrawal of tenders
stipulates
that:
"(1)
Any person who, directly or indirectly, 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,
as-
(a)
an
inducement to, personally or by influencing any other person so to
act-
(i)
award
a tender, in relation to a contract for performing any work,
providing
any service, supplying any article, material or substance or
pe1forming any other act, to a particular person; or
(ii)
upon
an invitation to tender for such contract, make a tender for that
contract which has as its aim to cause the tenderee to accept
a
particular tender; or
(iii)
withdraw
a tender made by him or her/or such contract; or
(b)
a
reward for acting as contemplated in paragraph (a) (i), (ii) or
(iii),
is
guilty of the offence of corrupt activities relating to procuring and
withdrawal of tenders.
(2)
Any person who, directly or indirectly-
(a)
gives
or agrees or offers to give any gratification to any other person,
whether for the benefit of that other person or the benefit
of
another person, as-
(i)
an
inducement to, personally or by influencing any other person so to
act, award a tender, in relation to a contract for performing
any
work, providing any service, supplying any article, material or
substance or pe1forming any other act, to a particular person;
or
(ii)
a
reward for acting as contemplated in subparagraph (i); or
(b)
with
the intent to obtain a tender in relation to a contract for
pe1forming any work, providing any service, supplying any article,

material or substance or performing any other act, gives or agrees or
offers to give any gratification to any person who has made
a tender
in relation to that contract, whether for the benefit of that
tenderer or for the benefit of any other person, as-
(i)
an
inducement to withdraw the tender; or
(ii)
a
reward for withdrawing or having withdrawn the tender,
is
guilty of the offence of corrupt activities relating to procuring and
withdrawal of tenders.
"
[48]
In
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer, South African Social Security Agency, and
Others
2014
(1) SA 604
(CC) at 616 C - E (para 27) Froneman J's remarks are
instructive:
"[27]
There is a further consideration. As Corruption Watch explained, with
reference to international authority and experience,
deviations from
fair process may themselves all too often be symptoms of corruption
or malfeasance in the process. In other words,
an unfair process may
betoken
a deliberately skewed process. Hence insistence on compliance with
process formalities has a threefold purpose: (a) it ensures
fairness
to participants in the bid process; (b) it enhances the likelihood of
efficiency and optimality in the outcome; and (c)
it serves as a
guardian against a process skewed by corrupt influences.
"
[49]
It
is clear to me that there was gratification towards Ms Botha by the
Trifecta Group. The amounts paid by the Trifecta Group for
the
renovations were to benefit Ms Botha personally, directly or
indirectly, and were never meant to be a loan. I accept the correct

amount of the renovations to be
R1
169 069.49.
It
is also my view that Ms Botha's relationship, firstly with Mr Breda
and subsequently with Mr Scholtz and the Trifecta Group went
beyond a
normal client/supplier relationship and redounded to the detriment of
the Department. The Trifecta Group should not have
assisted Ms Botha
financially as there are registered financial institutions
responsible for funding. Her submission that the bank
had declined
her application should also be taken with a pinch of salt. It cannot
serve as justification for her to approach the
Trifecta Group for
financial assistance. In fact the Trifecta Group should have steered
clear of the stated arrangement for at
least three reasons: (a) A
reputable financial institution is alleged to have found her not to
be credit worthy; (b) she was in
a highly conflictual and compromised
situation; and (c) she was vulnerable and prone to corrupt
influences. It has also been established
beyond doubt that she only
approached a banking institution after the parliamentary enquiry and
the renovations were already underway.
Altering records or agreements
takes careful planning and is therefore a serious malfeasons.
[50]
Ms
Botha was the HOD and hence the Accounting Officer. The phrase
commonly used is that "the buck stopped with her." She

tried to portray a picture of being bound by what the Bid Evaluation
Committee and the Bid Adjudication Committee recommended whereas
she
had not disclosed the corrupt relationship between herself and Mr
Breda to them. Besides, she had the ultimate power to approve
or
disapprove the recommendations. She, as the accounting officer, bore
the responsibility to ensure that prescripts are not compromised
or
contravened before appending her signature to any document. She was
on the take.
[51]
At
the risk of repetition but in summary:
(a)
Ms
Botha had a direct conflict of interest regarding the lease
agreements;
(b)
Her
family stood to benefit from the 10% Jyba Trust shares;
(c)
The
so-called 'donation' of the shares by Mr Breda, a very close friend
and a member of the ANC together with Ms Botha, must be
assessed
together with the fact that the same Mr Breda advised Ms Botha to
seek financial assistance from the Trifecta Group (Mr
Scholtz) for
the renovations of her home;
(d)
Ms
Botha and Mr Breda had become part and parcel of the same team: Team
"A". Ms Botha purported to represent the Department
and Mr
Breda the Trifecta Group. In fact and in truth they were representing
themselves. After Mr Breda's death and knowing that
she had already
awarded tenders to the Trifecta Group she should have declined the
offer for the 10% shares by Mr Scholtz. This
suggestion does not mean
that she would thereby have exculpated herself. The rot had already
set in and was far advanced.
[52]
I
am satisfied that the NDPP has succeeded in proving that this was
gratification and amounted to corruption and money laundering.
Under
the circumstances, as Japhta J pronounced in
National
Director of Public Prosecutions
v
Elran
2013
(1)
SACR
429
(CC);
2013 (4) BCLR 379
(CC);
[2013] ZACC 2
(Elran) at para 22:
"At
the outset we must remind ourselves of the nature of the legislation
we are concerned with. POCA was enacted in pursuit
of legitimate and
important government purposes of combating serious organised crime
and preventing criminals from benefiting from
the proceeds of their
crimes."
[53]
The
submission by Mr Albertus that the government is benefitting from the
leases is far removed from reality. Mr Trevor Sean White,
Director at
PricewaterhouseCoopers (PWC) Advisory Services (Pty) Ltd, was
appointed by the Department of National Treasury on 24
January 2012
to investigate allegations of fraud and corruption between the Dept
of Soc Dev & Pop Dev and Trifecta Investment
Holdings (Pty) Ltd
and related companies. According to Mr White in his sworn statement
the total actual prejudice in relation to
the lease agreements
already paid to the Trifecta Group as at 31 January 2012 was R26 681
835.37 which represents an amount which
was not due and payable to
the Trifecta Group and was to the prejudice of the Department and/or
SASSA. He explained that the sum
ofR26 681 835.37 escalates on a
monthly basis as the Department or SASSA continue to pay the Trifecta
Group and will reach an amount
of R57 402 266.49 if the leases reach
their full term.
Proportionality
[54]
The
NDPP submitted that Ms Botha's mother, Ms Gesiena Maria Botha, as the
executrix of her estate failed to file any substantive
application to
exclude any of her interest, material or otherwise. As a result,
there is no evidence of her homelessness which
she claims blandly.
The property was utilised as the late Ms Botha's primary residence.
The executrix has also not shown that she
is an innocent owner as
envisaged ins 52 (2A) of POCA where first, she would have to show
that she acquired the interest legally
and for a legitimate
consideration, the value of which is not significantly less than the
value of that interest and, neither knew
nor had reasonable grounds
to suspect that its acquisition was derived from proceeds of crime.
Differently put, she did not raise
the innocent owner defence. See
National
Director of Public Prosecutions v RO Cook Properties (Pty) Ltd;
National Director of Public Prosecutions v 37
Gillespie
Street Durban (Pty) Ltd and National Director of Public Prosecutions
v Seevnarayan
2004
(2) SACR 208
(SCA) at 226i - 227c. It is my view that there is no
evidence that shows that either Ms Botha's mother or her surviving
siblings
will not be able to acquire or provide alternative
accommodation. There is also no information placed before me that Ms
Botha's
mother's monthly income was insufficient to lease another
property or book into an old age or retirement home.
[55]
In considering the effect of the forfeiture of the immovable property
I had regard to, among others:
That the late Ms Botha secured a
mortgage bond of R705 000 for the property in favour of Absa Bank in
respect of which she has
repaid Absa Bank the amount of R739 927.48
through monthly instalments.
[56]
The
NDPP, relying on the Windeed Automated Evaluation Report, HJS2",
estimated the value of the property at R1 770 000.00.
Ms Botha
disagreed with that estimation and attached a letter from Alex
Thornhill Properties, an estate agency that estimated the
current
value of property to be in the region of R2.5 million. Thornhill
qualified the estimation in its letter dated 18 January
2013 marked
"YRB I" that it is not an accredited valuator and the
amount of R2.5 million, inclusive of 6o/o commission,
is only an
estimate. The NDPP erroneously accepted the value of R2.5 million as
market-related. It emphasised that the relief it
seeks is to dislodge
the value of the Trifecta Group funded renovations from the hands of
Ms Botha, her estate, as well as the
shares from her relatives.
[57]
In
my view the 6% commission claimed by the estate agent cannot be part
of the value of the property and must therefore be deducted
from its
value. Six per cent (6%) of R2.5 million rand, rounded off, amounts
to R4I6 000.00. I am therefore prepared to accept
that the best way
of arriving at the proper value of the property, given that the
evaluation was not done professionally by Alex
Thornhill Properties,
is to add the figure arrived at by the NDPP (Rl.770 000.00) to the
figure given by the estate agent R2.5
million less 6% to arrive at R2
084 000.00 and divide the two amounts by two to arrive at R1 927
000.00.
[58]
In
any event, Van Heerden AJ sounded a note of caution in
Mohunram
and Another v National Director of Public Prosecutions a11d Another
(Law Review Project as Amicus Curiae)
[2006] ZASCA 12
;
2007
(4) SA 222
(CC) at 257G that in considering whether or not a
forfeiture order will be disproportionate, it is not necessary to
conduct the
"financial exercise". I nevertheless conducted
it because the figures were provided. The learned Judge quoted the
following
at 2568 para 86 from
Van
der Walt
Constitutional
Property Law
(Juta,
Cape Town, 2005) at 195:
"[T]he
property rights of those who were actually involved in crime may be
lost through forfeiture, but by and large this is
not necessarily
unjust or unreasonable, as such loss would mostly be justifiable in
the normal way by describing the forfeiture
as an exercise of the
police power that merely has to satisfy the requirements ins 25(1) in
establishing a proper balance between
the public purpose of the
deprivation and the interests of the affected person.
"
[59]
I
am mindful of the fact that the primary purpose of forfeiture is to
remove the incentive for crime and not necessarily to punish
the
offender. See
National
Director of Public Prosecutions and Another
v
Mohamed
NO and Others
[2002] ZACC 9
;
2002
(4) SA 843
(CC). The property in this case however, is the proceeds
of corruption and money-laundering. I therefore find that the
property
ERF 3432 Kimberley also known as 12 Jawno Street, Kimberley,
as well as the value of the shares allotted to the Jyba Trust stands

to be forfeited to the State.
[60]
In
the result, the following order is made:
It
is ordered that:
1.
The
immovable property owned by the estate of the late Ms Yolanda Rachel
Botha, Estate No 394/2015 situate at Erf 3432, also known
as 12 Jawno
Street, Kimberley, is declared forfeited to the state in terms of ss
48(1) and 50(1)(b) of the Prevention of Organised
Crime Act 121 of
1998 (POCA).
2.
The
shares in the Jyba Beleggings Trust registered as T156/2010 are
declared forfeited to the state in terms of ss 48(1) and 50(l)(b)
of
the Prevention of Organised Crime Act 121 of 1998 (POCA).
3.
Ms
Gesiena Maria Botha, in her capacity as the executrix, and any other
person who has financial obligations in respect of the immovable

property is ordered to fulfil such obligations pending finalisation
of the forfeiture proceedings unless she (the executrix) signs
a
consent to judgment in favour of the National Director of Public
Prosecutions (NDPP).
4.
The
curator bonis, Johan Van Wyk of Enslins Kimberley Inc, Kimberley,
appointed by this court on 26 October 2012, is authorised
and
directed to:
4.1
As
soon as possible, but not later than 20 weekdays of this Order, and
after publication in the Government Gazette, sell the said
immovable
property on public auction or by private sale;
4.2
To
sign all registration documents relating to the immovable property
and or transfer of the shares;
4.3
Cause
the proceeds of the property, less incidental expenses thereto, to be
deposited into the Criminal Assets Recovery Account;
4.4
File
and serve his Final Report within 90 days from date of this order
setting out what he has done;
4.5
The
report in 4.4 and the Government Gazette in 6 (below) must be filed
on the file of the Court (Case No 1825/2012).
5.
The
applicant is ordered to serve a copy of this order on the
respondents.
6.
The
applicant is ordered to publish, as soon as possible, a notice of
this order in the Government Gazette.
MAMOSEBO
J
NORTHERN
CAPE DIVISION
For
the applicant:

Adv H van der Linde SC
Instructed
by:

The State Attorney, Kimberley
For
the 1
st
respondent:
Adv A Albertus
SC
Instructed
by:

Towell & Groenewaldt Attorneys