Family of ex-ANC MP fight NPA
Want only home renovations to be forfeited
RELATIVES of late former ANC MP Yolanda Botha are fighting the National Prosecuting Authority’s attempts to force them to pay for her involvement in corrupt leases worth R81 million.
The NPA’s move follows the payment for renovations worth about R1.2m by businessman Christo Scholtz’s Trifecta Group as a gratuity for Botha awarding the company six leases worth R81m between December 2006 and August 2008 when she was the head of the Northern Cape Social Services and Population Development Department.
Botha, who was head of the department between January 2001 and April 2009, was paid R1.2m to renovate her Kimberley home by Trifecta and given her 10% shares in the company, worth R28m.
She became an ANC MP after the 2009 general elections and never declared the benefits from Trifecta as required by Parliament.
The renovations and shares were found to be proceeds of unlawful activities in terms of the Prevention of Organised Crime Act and the purported loan agreement between Botha and Trifecta a sham and an attempt to cover the gratuity.
”The corruptee (Botha) used her pension proceeds to pay part of the ‘loan’, as a post facto failed attempt to cover up corruption,” read the NPA’s heads of argument, further stating that the Supreme Court of Appeal (SCA) correctly invalidated the “loan” in October.
After the family succeeded at the SCA, the NPA has hauled Gesiena Botha, the executrix of Botha’s estate, and Angelique Botha, a trustee of Botha’s Jyba Investment Trust, to the Constitutional Court.
The SCA found that the forfeiture of the whole property was disproportionate and that only the costs of the renovations should be forfeited, as Botha paid R411 000 to Trifecta as repayment of the alleged loan.
According to the country’s second highest court, an amount of R411 000 should be deducted from the cost of the renovations.
But the NPA insists that a proportionality analysis is irrelevant when the property it wants forfeited is proceeds of unlawful activity and that Botha’s R411 000 payment was part of her misrepresentation to mislead the public and investigators in the face of a parliamentary inquiry and police probe.
”We submit, however, that the SCA had correctly held that a proportionality inquiry was to be undertaken in respect of any civil forfeiture (whether the property is proceeds of unlawful activities or the instrumentality of an offence) and further that the court had exercised its discretion judicially in deducting the amount of R411 000 from the amount to be forfeited,” read the Bothas’ written submissions.
The family want only the renovations to be forfeited to the State and argue that forfeiture of the entire property would amount to punishing both Botha and her heirs.
The apex court will hear the NPA’s application in September.