The Constitutional Court recently ruled in NDPP v Botha NO and Another that property which constitutes the proceeds of unlawful activities is not protected by the Constitution and that forfeiture orders against such property do not amount to the arbitrary deprivation of property.

In terms of section 25(1) of the Constitution, every person has the right not to be deprived of their property arbitrarily.

The Prevention of Organised Crime Act (Poca) however, empowers the NPA to obtain a forfeiture order if the property is likely to be the proceeds of unlawful activities.

The question – says Sonke Gender Justice’s Ohene Yaw Ampofo-Anti – is whether a forfeiture order infringes the constitutional right to property and if so what recourse a person has against the NPA.

Writing on the GroundUp site, Ampofo-Anti notes the case concerned a forfeiture order against the property of the late Yolanda Botha, who was the head of the Department of Social Development in the Northern Cape for eight years.

She was found to have received more than R1.1m worth of kickbacks in the form of renovations to her property for signing off on leasing agreements between her offices and Trifecta.

While the SCA found that the property constituted the proceeds of unlawful activities, it pointed out that the NPA had sought forfeiture of the value of the renovations paid by Trifecta – as opposed to forfeiture of the entire property.

So the SCA deducted the amount which Botha had paid Trifecta for the renovations in determining the amount of property to be forfeited.

The top court had to determine whether the Constitution protects property which is the proceeds of unlawful activities from arbitrary deprivation, and if not, how much property Botha would have to forfeit.

Ampofo-Anti notes a majority of the court found that it was not necessary to consider whether property acquired as a result of crime is protected by section 25(1) of the Constitution.

All that must be determined is whether the forfeiture order was arbitrary, the court said.

The majority found that Poca’s fair procedure – coupled with the legitimate purpose it advances – means that forfeiture was not arbitrary.

However, a minority of the court found that even property which is the unlawful proceeds of crime would be ‘property’ protected by the Constitution and that ‘lawfulness’ was not a prerequisite for the protection of property.

But the majority said it would be illogical to consider Botha’s unlawful proceeds to constitute property in terms of section 25(1) since she had no right to the property in question.

They pointed out that section 25(1) does not create property rights, but protects existing ones. Botha had no existing rights that merited protection.

For these reasons, they said the proceeds of unlawful activities did not constitute property in terms of section 25(1).

All the judges agreed that Botha should forfeit the entire amount she received for the renovation.

Here, the majority agreed with the reasons given by the minority, which found that a purported ‘loan agreement’ was merely a front and the entire amount should be forfeited.

Full analysis on the GroundUp site