The NDPP was
successful in a case that was appealed all the way to the Constitutional Court.
A good summary of the case is set out in the first few pages of the judgment.
In brief, the
late Mrs Botha was the SASSA Head of Department in the Northern Cape Province,
when she accepted a gratification or corrupt benefit from Trifecta after she
awarded the latter with building rental tenders worth millions.
Her
gratification was in the form of renovations to her Kimberly house to the tune
of some R1.1 m and shares to her relatives. The High Court in Kimberly granted the
NDPP a preservation order against the value of the renovations and shares
themselves, as well as a later forfeiture order, but erred at the forfeiture
stage when it forfeited the entire house. (The submission at SCA that the NDPP
should have counter appealed against the latter order is well made.).
Botha’s
grounds of opposition throughout were that she had repaid R411 000 of the R1.1
m to Trifecta by virtue of a renovation ‘loan’ agreement and that this amount
ought to be set off or deducted from the R1.1 m, failing which it would be
unjust or disproportionate to forfeit the full amount.
The NDPP’s
stance was that the so-called loan was a sham and an afterthought after she
realised that the Parliamentary Committee and the police were investigating her
corrupt relationship with Trifecta. Further, it was argued that a proportionality
analysis does not and should not be applied to proceeds of unlawful activities
as is applied in instrumentality of offences cases (notwithstanding the
judgment in NDPP vSalie). In other words, the full amount
of the gratification and the shares were to be forfeited.
The SCA
agreed with Botha’s argument in relation to the set off because forfeiture of
the full amount of the renovations would be disproportionate, it reasoned. It did
not find that the loan was a scam. It did not however agree with the High Court
that the entire house should be forfeited – it was the value of the renovations
that were targeted by the NDPP. The shares were forfeited.
Constitutional Court (CC)
The issues
raised on appeal by the NDPP were:
1.
That property that constitutes unlawful activities
does not form part of property that enjoys constitutional protection in terms
of s25 of the Constitution, namely the right not to be arbitrarily deprived of
property; and
2.
As a result, the proportionality enquiry does not
apply since it more properly applies to the determination of arbitrariness of
deprivation that is linked to the constitutional right.
All 8 judges
of the CC agreed that the full amount of the renovations (and the shares having
already been forfeited by the SCA) should be forfeited to the State, that is,
without deducting the alleged repayment for a loan as the SCA had done.
The judges
differed in how they arrived at this conclusion. The issue turned on whether or
not the property was protected by s25 of the Constitution.
Majority judgement
Five judges
held that proceeds of unlawful activities do not form part of property that is
protected under the right not to be arbitrarily deprived of property. No person
can ever hold any lawful right in such property in order for that right to be
protected. Any concerns in respect of arbitrariness is regulated by the
requirements of POCA.
Property that
constitutes an instrumentality of offences is subject to s25 of the
Constitution since the property may not be proceeds of unlawful activities,
that is, the owner has a lawful right to the property.
Issues of
proportionality apply to constitutional considerations: it is a means to
determine if forfeiture would be arbitrary or not. Because s25 does not apply
to proceeds, such an enquiry is not relevant to proceeds cases.
In addition,
the court found that the loan was a sham and thus any set off was not proper.
Minority judgement
Three of the
CC Judges found that all property, whether or not it is proceeds, fall within
the right not to be arbitrarily deprived of property. The minority reasoned
that the constitutional right does not confer a right to property but rather a
protection against arbitrary state interference. The question is not about a
right to unlawful property but a right against the state not to act
arbitrarily.
As a result,
proportionality considerations apply and prevent the State from unjustifiably
infringing upon property rights. In this case, because the property was
proceeds, and corruption was a serious scourge in South Africa, it would not be
disproportionate to forfeit the entire amount. Hence why the Court arrived at
the same conclusion - but via a different avenue.
Conclusion
This judgment
is an excellent one. Our
jurisprudence has been developed significantly. It settles the law on the issue
of proportionality and overrules the position in the Salie matter.
It is also welcomed in
relation to its strong pronouncement
against corruption.
The forfeited amount is to be recovered
from the deceased estate of Botha.
