Answer to Question #205695 in Law for Mnyamezeli Phakath

Question #205695

Summary case of national director public prosecution v BOTHA

Expert's answer


Background Ms Botha, was the Head of Department (HOD) of the Northern Cape Department of Social Services and Population Development from January 2001 until April 2009. As the HOD, she held the rank of Deputy Director General and was the most senior functionary of the Department. In the course of her position as HOD, she embarked on an unprecedented scale of corruption by awarding tenders to a company known as Trifecta Investment Holdings (Pty) Ltd (Trifecta) for the lease of government premises. Trifecta would acquire well-constructed but rundown buildings within the Northern Cape Province. Trifecta would then renovate these buildings to lease to government departments at lucrative and exorbitant rates


In this Court The NDPP approaches this Court seeking to set aside the part of the Supreme Court of Appeal order that ordered the first respondent to pay R758 014.83 instead of R1 169 068.49. The Chief Justice issued directions on 27 February 2019 calling for written submissions on, inter alia, whether unlawful proceeds constitute property and whether a proportionality enquiry would apply to the forfeiture of proceeds of unlawful activities under section 50 of POCA.24 Issues.


The following order is made: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. Paragraphs 1(a) and 1(d) of the Supreme Court of Appeal order are set aside. 4. The first respondent must pay an amount of R1 169 068.49 to the state within a period of six months from the date of this order into the criminal assets recovery account number 8030 3056, held at the South African Reserve Bank.


The Supreme Court of Appeal erred in deducting that amount from the R1 169 068. But the Supreme Court of Appeal rightly reversed the forfeiture order granted by the High Court. The latter Court had ordered that the entire house of Ms Botha be forfeited to the state. This was not warranted because not the whole house was proceeds of unlawful activities. The order should have been limited to the value of those proceeds. Otherwise the forfeiture of the entire house constituted an arbitrary deprivation of property to the extent that the order went beyond the value of the proceeds of unlawful activities.

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