128. As explained, Justice Squires granted the NDPP confiscation orders in respect of the first, second and third benefits, and refused to grant an order in respect of the fourth benefit.
129. The Court’s reasoning, in essence, was as follows:
105 Van der Walt, Volume 2, para 54, page 182
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129.1 Section 19(1) of POCA authorised a confiscation order to the value of the gross proceeds of any unlawful activity, and no regard was to be had to the expenses and costs incurred by the Defendant in acquiring such proceeds.106
129.2 In regard to all of the three benefits:
(a) All arose from the same event, namely, the decision of the Thomson parent company to acquire the shares in ADS without the involvement of the Nkobi companies.107
(b) There was no evidence of a contractual obligation on the part of Thomson to include Nkobi in its acquisition of the ADS shares (as was contended by the Appellants).108
106 Judgment, Volume 7, pages 637-638, lines 1- 4.
107 Judgment, Volume 7, pages 638-, lines 10 – 20 and page 639, line 12.
108 Judgment, Volume 7, pages 642-643, lines 13- 17.
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(c) The trial court had held that two of the interventions by Zuma on behalf of the Appellants were not covered by the indictment and could not be taken into account in
convicting the accused for contraventions of the Corruption Act. The trial court held that since the State had not alleged or relied upon interventions by Zuma as Deputy President of the ANC, as distinct from
his positions as Member of the Executive Council in KwaZulu-Natal and Deputy President of the National Government, it could not at the end of the case argue that Zuma’s interventions as Member of the Executive Council in KwaZulu-Natal and Deputy President of the National Government should also include those as Deputy President of the ANC. Furthermore the State had led no evidence in the trial in regard to Zuma’s powers and duties as Deputy President of the ANC.109
109 Judgment, Volume 7, page 646, lines 18- 20.
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(d) The First Appellant had patronised Zuma due to the latter’s general political standing as opposed to his
position in the respective offices and, on the probabilities, Zuma’s intervention to persuade the Thomson parent company to include Nkobi in the ADS shareholding was the effective cause of the Third Appellant’s acquisition of the shareholding in ADS, the dividends that had been paid in respect of those shares, and the benefit received in respect of the sale of the shareholding in Thint
Holdings.110
(e) Zuma’s interventions on two occasions were related criminal activity and could be taken into account in making a confiscation order in terms of section 18 (1) of POCA.111
129.3 In regard to the relief claimed by the NDPP (a confiscation order), the court held that:
110 Judgment, Volume 7, page 658 , lines 1- 7.
111 Judgment, Volume 7, page 653, lines 7- 10.
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(a) It was proper for the Defendants to be directed to pay the value of the benefits jointly and severally, and not each independently, as the object of POCA was not to enrich the State.112
(b) Even though the Third Appellant had loaned the monies to acquire the Thint shares (from Thomson’s Mauritius division) and the dividends received by it were used to repay this loan, the confiscation order to the value of the shares (the first benefit) was not
a bar to a confiscation order for the value of the dividends (the second benefit), as both constituted benefits received from the payments made to Zuma.113
112 Judgment, Volume 7, page 659, lines 1- 13.
113 Judgment, Volume 7, page 660, lines 18- 20.
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Judgment of the SCA
130. As explained, the SCA confirmed the judgment of Justice Squires relating to the first and second benefits, and set aside the confiscation order relating to the third benefit.
131. The SCA’s findings, in essence, were these:
131.1 Pursuant to Zuma’s intervention, Thomson agreed to relocate its shares in ADS, resulting in Nkobi acquiring an interest in ADS. Zuma’s conduct fell within the scope of Shaik’s corrupt intention, which fell within the direct scope of the corruption charge under count 1. Therefore, Justice Squires
erred in regarding the intervention as “related criminal activity”, and applying Section 18(1) (c) of POCA. The applicable provision was Section 18(1) (a) of POCA.114
114 Judgment, Volume 26, page 2460-2461 at para [8].
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131.2 The provisions of POCA entitle a Court to grant a confiscation order against a defendant who has not benefited directly from his crime, that is, where there is an indirect benefit. Sections 1(1) and 19(1) of POCA do not require the connection between the proceeds of the crime, and the crime itself, to be direct.115
131.3 The provisions of POCA authorise multiple confiscation orders to be made in circumstances where the proceeds of unlawful activity has passed through different hands.116
131.4 Since the SCA had found, in the criminal appeal, that Zuma’s interventions fell within the ambit of count 1, such conduct was therefore directly related to the offence for which the Appellants had been convicted for the purposes of Section 18 (1) (a) of POCA.117
115 Judgment, Volume 26, page 2485 at para [24].
116 Judgment, Volume 26, page 2486-2487 at para [25].
117 Judgment, Volume 26, pages 2487-2488 at para [27].
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131.5 Squires J was correct in finding that the Appellants “did not prove” any contractual rights to acquire the shares in ADS.
Even if the Appellants did have such rights, the Appellants yet required Zuma’s intervention to ensure that Nkobi Investments stood to benefit from ADS being awarded the tender.118
131.6 The words “proceeds of unlawful activities,” in Sections 1(1) and 19 (1) of POCA refer to the value of everything received by a defendant in connection with the crime, without taking into account any expense to which the defendant is put to bring about any particular result. Those words cannot be interpreted to mean the nett proceeds.119
118 Judgment, Volume 26, pages 2487-2488 at para [27].
119 Judgment, Volume 26, pages 2487-2488 at para [27].
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131.7 There was nothing disproportionate in the Appellants being ordered to pay to the State both the value of the shares (the first benefit) and the value of the dividends used to pay for the same shares (the second benefit). Both constitute direct benefits of the corruption under count 1, and there was no reason for interfering with Justice Squires’ order in this regard.120
E. APPLICABLE LEGAL PRINCIPLES: GENERAL OVERVIEW