Kimberley - The defence for the late Yolanda Botha advised the court that it was unfair to prosecute the dead.
The Asset Forfeiture Unit made an application to the Northern Cape High Court on Friday to seize Botha’s immoveable property, valued at about R2.5 million, and shares in the Trifecta group of companies, in her capacity as the former HOD for Social Development.
Botha died during the course of the Trifecta trial in December 2014, after battling skin cancer.
The prosecution alleges that Botha received gratifications in the form of renovations to her home, shares and cash payments, in return for facilitating multimillion-rand government leases with Trifecta.
Her co-accused, former ANC provincial chairman John Block and the CEO of Trifecta, Christo Scholtz, will return to court for pre-sentencing procedures today after they were found guilty of corruption and money laundering.
The Asset Forfeiture Unit in January issued Scholtz with a draft order to confiscate R580 million of his assets and R2.7 million of Blocks’ belongings.
A fourth accused, the former MEC for Social Development Alvin Botes, was acquitted of all charges.
The prosecution stated that the R1.2 million improvements to Botha’s home in Jawno Street, Monument Heights, were never recorded in Trifecta’s books, which amounted to money laundering.
Botha’s legal representative, Senior Advocate Anwar Albertus, requested that the forfeiture application be dismissed.
“The court cannot enforce a forfeiture sanction simply because the State cannot propose a jail term for the accused, who is no longer alive.
“Taking away someone’s house when they never advertised a lease in the government tender bulletin is disproportionate to the crime.”
Albertus stated that the Asset Forfeiture Unit could not ask for more than the property was worth, when the exact value of the property had not been determined.
“Botha would still be living in her house if she was still alive today, while her 77-year-old mother is still living there.”
He pointed out that Botha was in the process of paying off the loan for her home renovations.
Botha was, however, struggling to keep up with the payments as her pension payout, upon resignation from the Department of Social Development in 2009, only amounted to R371 000, while her R2 million pension from Parliament could only be accessed if she had resigned.
Albertus explained that Botha had to upgrade the security at her home during her absence from Kimberley, as she was commuting regularly to Cape Town when she was employed at the National Assembly.
“The costs of upgrading the security walls and gates escalated to R1.2 million. Her niece was employed at Trifecta and she initially approached Scholtz for a R500 000 loan to finance the renovations, after Absa Bank declined her loan application.
“She also invested R123 000 of her own money in the upgrade. If she was corrupt, she would have made Trifecta fund the entire amount.”
Albertus said that the costs of the renovations were not disguised but had merely been captured incorrectly.
“None of the leases entered into for government departments were the proceeds of organised crime.”
Albertus added that Botha had acted in conjunction with the recommendations of the bid evaluation and adjudication committees and had not influenced anyone nor had she solicited any favours.
“The R15 000 donation was given to Botha as a donation for the ANC’s centenary celebrations in 2010. This does not constitute a gratification.
“There is no evidence to prove that there was anything sinister when she agreed to be part of late Trifecta co-director Sarel Breda’s broad-based black empowerment arm of the business. He wanted to empower previously disadvantaged individuals and females. Breda donated R2 million to the ANC before he died. He was known as a philanthropist and a generous man.”
Albertus indicated that nominating a family member as a beneficiary for the Jyba Trust was not a crime.
He added that government departments had concluded leases and were occupying the buildings rented from Trifecta.
“No losses were established. The only possible prejudice is that the prices of the leases were not market related. Botha was authorised to sign off the leases, she did not pretend to be someone else. The departments had to acquire office space as a matter of urgency and were instructed to involve black entities as the leasor.”
Senior State advocate Hendrik van der Linde, appearing on behalf of the Asset Forfeiture Unit, pointed out that any benefits procured through unlawful activity could not be used to benefit Botha's relatives.
“The interests of the mothers and minors of an accused with regards to their immoveable property, is not excluded from the Prevention of Organised Crime Act (Poca).”
He added that the loan agreement granted to Botha by Trifecta to renovate her home was only drawn up after the money had been given to her.
“It only came to the fore when the parliamentary ethics committee had enquired why the deceased, had not disclosed this benefit.”
Van der Linde added that Botha was in a position of influence.
“At one stage Trifecta had signed 30 government leases. This should have set off the alarm bells as to why one company could have secured so many lucrative leases.”
Van der Linde reasoned that Botha had nominated her niece as a beneficiary of the Jyba Trust, as she predicted that the value of the shares in Trifecta would increase.
“The home renovations were an instrument of an offence that affected a large number of state departments, where a substantial amount of money was involved.”
Judge Mpho Mamosebo reserved judgment.
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