Case CCT 280/2018
In the matter between:
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Applicant
and
GESIENA MARIA BOTHA N.O. First Respondent
ANGELIQUE BOTHA N.O. Second Respondent
RESPONDENTS’ PRACTICE NOTE
A. Nature of proceedings
Application for leave to appeal against the judgment and order of the Supreme Court of Appeal.
B. The issues to be argued by the Respondents
(i) It is not in the interests of justice for leave to appeal to be granted.
(ii) A proportionality enquiry is to be undertaken in respect of any civil forfeiture, whether the property is the proceeds of unlawful activities, as contemplated in section 50(1)(b) of the Prevention of Organised Crime Act, 21 of 1998 (“POCA”), or the instrumentality of an offence, as contemplated by section 50(1)(a) of POCA.
(iii) The SCA correctly:
a. found that a monetary amount equivalent to the costs of the renovations to the home of the late Yolanda Botha (the “deceased”) – rather than her entire property – should be declared forfeit;
b. reduced the amount to be forfeit by an amount of R411,054.66, which the deceased had repaid to the Trifecta Group of companies (“Trifecta”).
C. Portions of the record that are relevant to the Respondents’ argument
(i) Paragraphs 5 and 6 of the founding affidavit, record vol 1 pp 7-8 (ii) Paragraph 32 of the founding affidavit, record vol 1 p 15
(iii) First Respondent’s answering affidavit, record vol 2 pp 101-154
(iv) First Respondent’s further answering affidavit, record vol 4 pp 315-325 (v) Paragraph 13 of the NDPP’s replying affidavit in the forfeiture
application, record vol 5 pp323 to 333
(vi) High Court judgment, record vol 6 pp435-473 (vii) SCA judgment, record vol 6 pp 475-493 D. Estimated duration of oral argument
Not more than one day.
E. Summary of Argument
(i) It is not in the interests of justice for leave to appeal to be granted:
a. The NDPP’s prospects of success are poor, particularly since there is no basis to find that the SCA misdirected itself in either overturning the High Court’s order or in its calculation of the value of the proceeds of the offence and the amount to be forfeited;
b. The NDPP has not alleged that it would be in the interests of justice for leave to be granted, or addressed any of the relevant factors in this regard.
(ii) The SCA correctly overturned the High Court’s forfeiture order in respect of the entire home of the the deceased. The Applicant had not sought such an order in its papers in the High Court and the property was acquired by the deceased through a bank loan.
(iii) The SCA also correctly found, instead, that a monetary amount equivalent to the costs of the renovations (which were the proceeds of
crime) should be declared forfeited, and that this monetary amount should be reduced by the amount of R411,054.66, which the deceased had repaid to Trifecta.
(iv) In reaching its conclusion, the SCA need not have undertaken a proportionality enquiry at all. This is because none of the property that the SCA found ought not to be declared forfeit constituted the proceeds of crime. The proceeds of crime could only constitute an amount equal to the funds Trifecta had paid towards the renovations, less the amount repaid by the deceased.
(v) Even if a proportionality enquiry were applicable in the present case, the SCA in any event correctly held that a proportionality enquiry is to be undertaken in respect of any civil forfeiture (whether the property is the proceeds of unlawful activities, as contemplated in section 50(1)(b) of POCA, or the instrumentality of an offence, as contemplated by section 50(1)(a) of POCA).
(vi) There is no principled reason why a proportionality analysis should not apply both where property is the instrumentality of an offence and where it is the proceeds of unlawful activities. In both cases:
a. forfeiture deprives a person of property, thus implicating section 25(1) of the Constitution;
b. proportionality is the means by which a court may ameliorate an otherwise arbitrary and unconstitutional deprivation of property,
although it may be easier for the State to justify the deprivation of the proceeds of unlawful activities.
(vii) The SCA correctly deducted from the costs of the renovations, the amount of R411,054.66 paid by the deceased to Trifecta in calculating the value of the proceeds of the offence. In this regard:
a. The High Court found that the deceased had used her own pension fund monies to make most of the payment. On the basis of simple arithmetic, the deceased’s estate had no longer been unlawfully enriched to the full value of the renovations;
b. Regardless of the nature of the payments by Trifecta to the deceased (in particular, whether they were made under a genuine loan), the deceased paid part of what she received back to Trifecta.
The amounts she paid back are no longer in the hands of the deceased’s estate. To the extent that the costs of the renovations are the proceeds of crime, those proceeds have been reduced by the amount the deceased repaid (regardless of the characterisation of the payments by Trifecta to the deceased). The deceased gave up part of those proceeds;
c. It would be arbitrary to order forfeiture of property in the deceased’s estate that did not represent the proceeds of crime. To do so, would cross over from the stated remedial purpose of civil forfeiture, to punishing the deceased and by extension, her heirs.
F. Authorities on which particular reliance will be placed
(i) National Director of Public Prosecutions v Salie and Another [2014] 2 All SA 688 (WCC); 2015 (1) SACR 121 (WCC)
(ii) Mohunram v National Director of Public Prosecutions (Law Review Project as Amicus Curiae) 2007 (4) SA 222 (CC)
(iii) Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC)
MA ALBERTUS SC GGM QUIXLEY
Respondents’ Counsel Chambers, Cape Town 25 July 2019
