National Director of Public Prosecution v Botha N.O and Another [2020] ZACC 6

1. Case title and citation. 

National Director of Public Prosecution v Botha N.O and Another [2020] ZACC 6

        2. Court name and bench  

Court: Constitutional Court of South Africa 

Coram:  

∙ Mogoeng CJ 

∙ Froneman J 

∙ Jafta J 

∙ Khampepe J 

∙ Madlanga J 

∙ Theron J 

∙ Victor AJ (Acting Judge) 

Judgements:  

∙ Majority: Jafta J 

∙ Minority: Victor AJ (with Froneman J and Khampepe J concurring)

      3. Date of judgement 

26 March 2020 

4. Parties involved 

Applicant: National Director of Public Prosecutions (NDPP) sought a forfeiture order under POCA for the value of all the benefits believed to be corrupt. 

Respondents:  

∙ Gesiena Maria Botha N.O. (first respondent) 

∙ Angelique Botha N.O. (second respondent)  

The late Ms Yolanda Botha’s estates were presented by the two respondents.

      5. Facts of the case 

∙ From 2001 to 2009, Ms Yolanda Rachel Botha was in charge of social services in the  Northern Cape. 

∙ She gave Trifecta Investment Holdings government leases without checking them first, which  cost the state billions of dollars. 

∙ As a reward, Trifecta fixed up her house for R1, 169,068.49, which was clearly illegal. ∙ Later, to hide her dishonesty, she signed a fake “loan agreement” for R500, 000, which was a  lot less that what the renovations would have cost.

∙ After the 2011 investigations by parliament began, she made two payments to Trifecta costing  R411 054.66 and said they were repayments. 

∙ She died in 2014 while criminal charges were being considered against her. ∙ The NDPP asked that the value of the renovations be taken away under section 50(1)(b) of the POCA (proceeds of unlawful acts) 

Lower courts: 

∙ High Court: said that the whole thing should be forfeited. 

∙ The Supreme Court of Appeal: said that only R758, 014.83 should be lost, which is the cost  of the renovations minus Ms Botha’s claimed payments. 

The NDPP took their case to the Constitutional Court. 

6. Issues raised 

∙ Does illegal money from crimes count as “property” protected by section 25(1) of the Constitution? 

∙ Should a court use a proportionality approach when telling someone to give up their money  under POCA section 50(1) (b)? 

∙ If so, did it make sense for Ms Botha’s estate to lose the whole R1, 169,068.59? Even though  she was said to have paid it back? 

7. Arguments of the parties 

NDPP 

∙ The NDPP says that illegal profits should not be protected as property under section  25(1) 

∙ Property that is proven to be the results of a crime must be forfeited. ∙ The “loan repayments” were not real repayments; they were just efforts to hide  wrongdoing. 

∙ Full forfeiture is needed to stop crooks from getting something good out of breaking  the law. 

Respondents  

∙ Under section 25(1), even money obtained illegally is “property”.  

∙ All POCA forfeitures, including profits, are subject to a proportionality inquiry. ∙ Ms Botha paid back some of the loan, so confiscation should take that into account. ∙ Giving back the whole amount would be unfair and random. 

8. Judgement/ Final decision 

Majority (Jafta J): 

∙ Leave to appeal granted  

∙ Appeal upheld 

∙ Respondent must pay R1 169 068.49 (full value of renovations) to the state. ∙ If payment is not made within six months, the curator must sell the property to  recover the amount. 

9. Legal reasoning/ Ratio decidendi 

Key principles 

1. Under section 25(1). Illegal proceeds become “property” 

∙ Section 25 guards against unlawful deprivation rather than just legal property. ∙ Security is against irrational state action, not to guarantee a right to illegal  profits 

2. Proportionality applies to forfeiture of both: 

∙ Crimes instruments section 50(a), this guarantee forfeiture is not random.

       3. Strict proportionality test applies to revenues. 

∙ Offenders should not hold any fruits of their deeds; this is default posture. ∙ Partial forfeiture is only permitted under unusual situations. 

4. Application for Ms Botha 

∙ After renovations started, the “loan agreement” was a sham. 

∙ Her claimed repayments were not real debt payments; they were attempts to  hide what she had done after being caught. 

∙ She never really paid back any of the benefit that was tainted. 

∙ When someone breaks the law, they should not get anything good out of it.  ∙ Full confiscation makes sure that this happens. 

For these reasons, it is fair, reasonable, and constitutional to lose the full value of the  renovation. 

10. Conclusion 

∙ This case makes it clear that illegal profits are protected property, but only against  being taken without good reasons. They are not protected against corruption.

∙ The constitutional court said that proportionality applies to all POCA forfeiture  orders. However, it stressed that criminal profits will almost always be forfeited in a  proportional way. 

∙ The decision makes it easier to fight corruption because it stops fake loan agreements  or hidden payments from lowering forfeiture liability.