Johannesburg - Relatives of 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 R81million.
The move follows the payment for renovations worth about R1.2m by businessman Christo Scholtz’s Trifecta Group as a gratification for Botha awarding the company six leases worth R81m between December 2006 and August 2008 when she was head of the Northern Cape social services and population development department.
Between January 2001 and April 2009, she was paid R1.2m to renovate her Kimberley home by Trifecta and given 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 gratification.
“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 took 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 the forfeiture of the whole property was disproportionate and only the costs of the renovations should be forfeited as Botha had paid R411000 to Trifecta as repayment of the alleged loan.
But the NPA has claimed a proportionality analysis was irrelevant when the property was the proceeds of unlawful activity and Botha’s R411000 payment was part of her misrepresentation to mislead the public and investigators in the face of a parliamentary inquiry and police probe.
“We submit that the SCA had correctly held that a proportionality inquiry is 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 wanted only the renovations to be forfeited to the state, and forfeiting the whole property would amount to punishing Botha and her heirs.
The NPA described the Trifecta matter as organised crime and money laundering on a grand scale.
Scholtz is serving a 15-year jail sentence with former ANC Northern Cape chairperson John Block for fraud and money laundering.
Botha died of skin cancer in December 2014 before the trial was completed.
In July 2016, Northern Cape High Court Judge Mpho Mamosebo ordered her home and the shares in Trifecta be forfeited to the state.
But in October last year, the SCA upheld her family’s appeal, ordering that Gesiena pay the more than R758000 outstanding within six months of the judgment.
The Concourt will hear the NPA’s application in September.