ATC110825: Report Investigation into the allegations against Ms Yolanda Botha Member of the National Assembly, published in the Mail and Guardian of February 11 to 17, 2011

Higher Education, Science and Innovation

Ref b326 5 August 2011

REPORT OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS’ INTERESTS, DATED 25 AUGUST 2011:

 

Mashile, BL [ANC-NCOP] Chairperson

 

Turok, Prof B [ANC] [Co-Chair]

Koornhof, Dr GW [ANC]

Luyenge, Z [ANC]

Mangena, M [ANC]

Ngcobo, BT [ANC]

Nhlengethwa, DG [ANC]

Radebe, B [ANC]

Dreyer, A [DA]

Kohler-Barnard, D [DA]

 

NCOP

Mabe, BO [ANC-NCOP]

Magadla, NW [ANC-NCOP]

Mashamaite, TA [ANC-NCOP]

Moshodi, ML [ANC-NCOP]

Rantho, DZ [ANC-NCOP]

Bekker, JM [DA-NCOP]

 

In attendance:

F. Mahomed Registrar

M. Vassen Legal Adviser

 

The Joint Committee on Ethics and Members Interests met to consider the report of the Panel regarding the complaint against Hon YR Botha MP.

 

The following report was presented.

 

REPORT OF THE PANEL OF THE JOINT COMMITTEE ON ETHICS AND MEMBERS’ INTERESTS TO CONSIDER THE COMPLAINT AGAINST HON. YR BOTHA, MP

 

PRESENT

Turok, B (ANC) (Chairperson)

Dreyer, AM (DA)

Koornhof, GW (ANC)

Mashile, BL (ANC)

Rantho, DZ (ANC) (replaced Magadla NW (ANC))

Van der Merwe, JH (IFP)

 

1. BACKGROUND

1. Acting in terms of paragraph 17 (1) of the Code of Conduct for Assembly and Council Members (Code), the Joint Committee on Ethics and Members’ Interests instructed the Registrar of Members’ Interests to conduct an investigation into the allegations against Ms Yolanda Botha Member of the National Assembly, published in the Mail and Guardian of February 11 to 17, 2011.
2. The Mail and Guardian article alleged the following:

“Ms Y Botha and her family received kickbacks from a company to which she assigned tenders worth R50 million when she was an official in the Northern Cape . Within a year Trifecta also renovated Ms. Botha’s Kimberley home for at least R500 000. Ms Botha has not declared either benefit to Parliament.”

1. Members of Parliament are required to declare all “registrable interests” and “benefits in cash or in kind” this includes in terms of paragraph 7(g) the nature and source of any other benefit of a material nature; and the value of that benefit.

4. Ms Botha did not disclose any benefit as required in the Code.

5. The Registrar proceeded with the investigation on the receipt of the alleged benefits from Trifecta Investment Holdings in terms of the Procedure for the Investigation of Complaints. (As adopted by both Houses).

1. Ms Botha had submitted a copy of a loan agreement which indicated she received a loan of R500 000 and that this was not a benefit; this contradicted the information that the Registrar received from Ms M Buizer, a witness who was previously employed at Trifecta Holdings.
2. Mr. D Malan, from Pasch and Malan a building contractor working for the Trifecta group, and responsible for the renovations made to Ms Botha’s residence in Kimberley submitted invoices which showed that the costs incurred for the renovations exceeded R1.2 million. This was paid for by Trifecta Investment Holdings.
3. Paragraph 3.1.1 for the Procedure for the Investigation of Complaints requires that a hearing must beheld when the facts are in dispute.(Procedure)
4. The Committee elected a panel of six members to conduct the hearing; the following members were appointed ; Prof B Turok (Chairperson), Mr. BL Mashile, Ms A Dreyer, Dr GW Koornhof, Mr. JL Van der Merwe, and Ms NW Magadla.
5. The Committee agreed to hold the hearings in closed session as is allowed under clause 59 (2) in the Constitution and Rule 125 in the Joint Rules and also as there was a request from the SAPS who were concerned that important evidence may be jeopardized and that a witness Mrs. Buizer’s safety was at risk.
6. Ms Y Botha was informed on the 8 June 2011 that a hearing will be held on 22 June 2011 to consider the allegations against her.
7. The following charges were put to Ms Botha :

(i) Non- disclosure of benefits received from Trifecta Investments Holdings as required by item 7(g) of the Code of Conduct.

(ii) Regarding the allegations of non-disclosure of a benefit, Ms Botha wilfully misled the Committee on the value of the benefits received by submitting a sworn statement which was false and misleading.

 

1. HEARING

1. At the hearing, Mr. J B Sibanyoni MP acted for Ms Botha, he requested an adjournment to prepare an adequate defence . The request for the extension was agreed to by the Panel.
2. Ms Botha confirmed that she did not require a translator.
3. The hearing rescheduled on 4 August 2011, the Co-Chairpersons agreed that Ms Z Rantho would replace Ms W Magadla who was unavailable. Ms Botha had no objections to the change in the Panel.
4. Ms. Botha took the prescribed oath and pleaded not guilty to the charges, stating that she did not receive any benefit from Trifecta, but a loan which was to be repaid. She also stated that her affidavit of 22 February 2011 was not meant to mislead the Committee. She said that she had no legal experience to accounted for the mistake.

 

3. CONSIDERATION OF THE EVIDENCE

1. AFFIDAVIT BY CHRISTO SCHOLTZ

(i) In an affidavit from Mr. Christo Scholtz the Managing Director of Trifecta Holdings in the Gauteng North High Court in an unrelated matter, he declared that “the deceased (Mr. Sarel Breda a partner in Trifecta Investment Holdings) had, to my personal knowledge, in 2005 undertaken to transfer a 10% shareholding in the final respondent to the nominees of Yolanda Botha, who was a close friend of the deceased and influential in political circles. She had not yet nominated the entity to which shares should be transferred at the time of the deceased’s death, and hence the reference to the YB Trust in the spreadsheet.”

(ii) In her response to this evidence, Ms Botha stated that the statement by Mr. Scholtz was not relevant as Trifecta were not successful in this case.

1. LEASES

(i) The Panel noted that Ms Botha in her capacity as Head of Department in the Northern Cape Department of Social Services and Population Development signed leases with various companies in the Trifecta Group to a total value of R98 389 206 .00 from the period

1 December 2006 to 1 August 2008.

(ii) In her defence Ms Botha stated that she merely signed in her capacity as Head of Department, and that the leases were procured by the Supply Chain Management of the Department. When asked why she had not recused herself, she did not respond directly.

 

1. LOAN AGREEMENT

(i) The Registrar noted that the loan agreement submitted by Ms Botha on 22 February 2011 was vague in that it contained no terms of repayment; no interest was accrued, nor was an interest rate established.

(ii) The final cost of the renovations was in excess of R1.2 million and not the amount of R500 000 in the affidavit submitted by Ms Botha.

(iii) The witness to the loan agreement confirmed in a signed affidavit that she was not present when the loan was signed and had no recall of the date that the contract was signed.

(iv) In her response in a second affidavit, Ms Botha stated that as she is not legally trained she was not aware of the documents she was required to submit to the Registrar of Members’ Interests.

 

1. MR. MALAN’S SUBMISSION AND TESTIMONY

(i) Mr. Malan is a building contractor who works solely for the Trifecta Group of companies across South Africa .

(ii) Ms Botha had conceded that the costs as submitted by Mr. Malan which amounted to just over R1.2 million, was correct.

(iii) There is also no dispute that the renovations commenced in 2009. A summary of the costs with the monthly breakdowns indicate that the last costs incurred for the renovations were in October 2010, and at that stage the costs exceeded R1.2 million.

(iv) Questions were raised about the allocation of costs for the renovations to Ms Botha’s house. Invoices were listed as Ms Botha’s house/Magambos. (Magambos being the name of Trifecta’s headquarters). Mr. Malan was not able to explain this method of accounting.

(v) Mr. Malan was also unable to explain the issue of the budget when asked whether he was given any limit, he indicated that he spoke to Mr. Scholtz about costs and that he was not asked to limit the costs, and that Mr. Scholtz discussed these issues directly with Ms Botha.

(vi) On the question of whether Ms Botha knew of the cost beyond the budgeted amount of R500 000; Mr. Malan stated that Ms Botha was also involved and informed on all decisions about the renovations including increased costs by himself and Mr. Scholtz.

 

1. JYBA TRUST

(i) The Panel noted that a 10% shareholding was transferred by Trifecta Investment Holdings to the JYBA Trust in January 2010.

(ii) The beneficiaries of the trust are Ms Botha’s nieces and nephews;

(iii) This allocation was in accordance with the affidavit by Mr. Scholtz and gave effect to the promise made by Mr. Breda in 2005 to Ms Botha.

(iv) In her response to the Panel’s questions on this matter, Ms Botha said that Trifecta had given the shares to her niece Angelique Botha as she worked for Trifecta Investment Holdings; she made no mention of the other nieces and nephews including those who were minors.

(v) She indicated that Angelique Botha was employed by Mr. Breda, a close family friend, to liaise with government clients on behalf of Trifecta Holdings.

 

1. AFFIDAVIT AND TESTIMONY BY MS BUIZER

(i) Ms M Buizer was a former office manager at Trifecta Investment Holdings, from 2005 to 2010.

(ii) She spoke to her affidavit and said that she was told by Mr. Scholtz to allocate the costs of Ms Botha’s renovations to the Magambos Building acting (a building owned by Trifecta Investments) to conceal the benefit to Ms Botha.

(iii) At the time, in 2009 Mr. Scholtz indicated that the estimated budget for the renovations would be R1.5 m.

(iv) She also said that no stage was this amount represented as a loan, as the procedure for capturing loans in the financial records was different.

 

1. MS BOTHA’S TESTIMONY, AFFIDAVIT 2 and AGREEMENT

(i) In her defence Ms Botha explained that she had failed to get a bank loan for the renovations hence she turned to Trifecta, Ms Botha submitted a laon application from ABSA Bank. The Panel noted that the application for a loan was made in May 2011 months after the investigation against her commenced.

(ii) She also stated that payment of the loan was to be made from her pension fund contributions and through her own funds. The Panel noted that payment to Trifecta Investment Holdings was only made after the investigation commenced.

(iii) In her testimony Ms Botha indicated that she always intended to repay the amount when she received her pension payout. The Panel noted that in her initial affidavit she did not indicate this.

(iv) Ms Botha stated that the loan was recorded by Trifecta’s Auditors. The Panel noted that the loan certificate was only issued after the investigation commenced.

(v) Ms Botha also submitted a second signed agreement between herself and Trifecta Investments indicating that she would pay the amounts due. This document was signed on 20 June 2011, also done after the investigation commenced.

(vi) Ms Botha also submitted an affidavit by NJ Pollard the accountant of the Trifecta Group of Companies which states that he had checked Trifecta’s record and found that no previous loan certificates which were issued by Ms Buizer.

(vii) When questioned about her relationship with Mr. Scholtz, Ms Botha stated that she met Scholtz of Trifecta only once and at the funeral of Mr Breda.

(viii) Mr. Malan worked directly under the direction of Mr. Scholtz and he believed that details of payments for the renovations were discussed between Ms Botha and Mr. Scholtz. He stated “They know each other quite well and must have had mutual dealings on this matter.”

(ix) Ms Buizer testified that the relationship between Mr. Scholtz and Ms Botha was “warm” and that Ms Botha visited Mr. Scholtz office on many occasions, she recalled that she made tea for them.

(x) Ms Botha stated that she had not visited Mr. Scholtz office and did not have a close relationship with Mr. Scholtz.

(xi) Ms Botha submitted when completed the form for the declaration of the interests she did not think that the loan from Trifecta was a benefit.

(xii) In her evidence Ms Botha stated that Mr. S Breda was a close family friend.

 

 

4. FINDINGS

CHARGE 1

 

Non- disclosure of benefits received from Trifecta Investments Holdings as required by item 7(g) of the Code of Conduct.

Noting that,

(i) In 2005, Ms Botha or her nominees were promised 10% shares in Trifecta Investment Holdings,

(ii) In 2006 Ms Botha signs leases with various companies in the Trifecta Group exceeding R98 million in her capacity as Head of Department.

(iii) Ms Botha indicated in her testimony that her niece was responsible for managing relations with government clients at Trifecta Investments

(iv) Ms Botha did not disclose her conflict of Interests as required in terms of the PFMA

(v) Dismisses her assertion that she merely signed the documents and that the Departmental Supply Chain Management procured the property,

(vi) Confirms that in terms PFMA she bears responsibility and makes the decision to approve as the Head of Department and Accounting Officer for the Northern Cape Department of Social Development and Population Development.

(vii) Rejects affidavit 1 in which Ms Botha claims that the cost of the renovations were covered by a loan

(viii) Finds that in Affidavit 2 Ms Botha further attempts to mislead the Committee in that she presents a loan application for May 2011 to back her claim that the renovations were to be paid for by means of a loan, which she only applied for after the commencement of the investigation

(ix) The loan certificate by Trifecta’s Auditors was also issued after the investigation commenced.

(x) Took note of the testimony given by Ms Buizer in which she said that it was the costs of renovations were never meant to be covered by a loan and found Ms Buizer to be a truthful and compelling witness.

(xi) The Panel notes that the benefits were in relation to actions taken during Ms Botha’s tenure as Head of Department, but received after she was elected as Member of Parliament.

(xii) The affidavit made by Mr Scholtz to the North Gauteng court is clear, that Ms Botha received a benefit.

(xiii) The JYBA trust is a benefit to Ms Botha

 

 

The Panel therefore finds on charge 1:

1. That Ms Botha is guilty and a benefits relating to the renovations to her house is a benefit accrued from an improper or generally corrupt relationship between Ms Botha and Trifecta Investments Holdings.
2. The Panel further finds that the receipt of 10% shares in Trifecta Holdings held by Ms Botha’s nominees to Ms Botha also constitute a benefit which she did not declare.

 

CHARGE 2

Regarding the allegations of non-disclosure of a benefit, Ms Botha wilfully misled the Committee on the value of the benefits received by submitting a sworn statement which was false and misleading.

 

Noting that;

(i) The invoices submitted by Mr Malan reflect that there the last costs relating to the renovations were in October 2010 and the amount at that time exceeded R1.2 million. Despite this Ms Botha submitted the loan agreement with a value of R500 000 to try to prove that the cost of the renovations were in fact a loan.

(ii) When it became evident that Ms Botha could not refute the total costs of the renovations she made a further submission under oath that the error was due to the fact that she had no legal background. The Panel rejects her assertion on the basis that a former Head of Department responsible for managing a department with large budgets cannot claim to be unable to understand a letter requesting the full costs of renovations to her home.

(iii) Mr. Malan confirmed that Ms Botha was made aware on an ongoing basis of the increased costs.

(iv) She was well aware that the costs exceeded R500 000 when she handed in her affidavit to the Committee on 22 February 2011.

(v) Ms Botha nominated her nieces and nephews to receive 10% shares to mislead and create an impression of an arms length distance between herself and Trifecta. This was a wilful intention to mislead the Committee regarding the disclosure of Interests and was an attempt to conceal an improper relationship.

(vi) In order to create an impression that the loan was regular, Ms Botha made payments to Trifecta, and applied for a loan well after the commencement of the investigation.

(vii) There is a significant discrepancy in the evidence between Ms Botha and the witnesses about her relationship with Mr. Scholtz. Both Ms Buizer and Mr. Malan’s testimony contradict her version.

(viii) The Panel considered the second affidavit of Ms Botha and found inconsistencies. Mr. Malan in his testimony said that he operated on Mr. Scholtz instruction and was not commissioned by Ms Botha whereas Ms Botha states in her affidavit that she approached Mr. Malan.

(ix) In evidence before the Panel Ms Botha attempts to conceal the truth by stating that she refers to Ms Angelique Botha as a beneficiary of the trust, omitting that the other beneficiaries were other relatives of her, some of whom were minors.

 

The Panel therefore finds on charge 2

Ms Botha guilty of willfully misleading the Committee in respect of submitting a false loan agreement for R500 000 when the actual costs exceeded R1.2 million at the time the affidavit was submitted on 22 February 2011.

 

 

FINDINGS ON BOTH CHARGES

 

 

The Panel therefore finds on charge 1:

1. That Ms Botha is guilty and a benefits relating to the renovations to her house is a benefit accrued from an improper or generally corrupt relationship between Ms Botha and Trifecta Investments Holdings.
2. The Panel further finds that the receipt of 10% shares in Trifecta Holdings held by Ms Botha’s nominees to Ms Botha also constitute a benefit which she did not declare.

 

The Panel therefore finds on charge 2

(a) Ms Botha guilty of willfully misleading the Committee in respect of submitting a false loan agreement for R500 000 when the actual costs exceeded R1.2 million at the time the affidavit was submitted on 22 February 2011.

 

PENALTY

The Panel, noting that MS Botha lied under oath and submitted false and misleding evidence and showed no sign of remorse recommends,

1. that MS YR Botha be reprimanded and
2. Imposes the maximum penalty in terms of 19(1) of the Code, a fine of 30 days salary.

 

FURTHER RECOMMENDATIONS

The Panel further proposes that

 

(i) The receipt of benefits by Ms Botha in respect of the renovations and shares be investigated by SARS

(ii) The documents submitted by Auditors Vos, Steyn and Van Zyl, as well as affidavit by Nicholas Pollard appear to be false and be submitted to SAICA for further investigations.

(iii) The Public Service Commission investigates Ms Botha’s conduct during her tenure as Head of Department.

(i) The South African Police Service considers the information for possible criminal prosecution.

(ii) Ms Botha should be referred to That the National Assembly Disciplinary Committee further investigates Ms Botha for false and misleading information to the Joint Committee on Ethics and Members Interest,.

 

 

The Joint Committee on Ethics and Members Interest at its meeting of 25 August 2011, considered the late submission by Ms Botha’s representative; the Committee found that there is no compelling argument which materially alters the recommendations of the Panel.

Accordingly, the Committee unanimously adopted the Report of the Panel and confirmed its findings and penalties.

 

 

SCHEDULE OF EVENTS

1. 2001 to 2009. Ms Botha was the Head of Department of the Northern Cape Provincial Department of Social Services and Population Development.

 

1. 2005. Mr. Sarel Breda, Head of Trifecta Investment Holdings, undertook to allocate 10 % of shares in Trifecta Investment Holdings (hereinafter referred to as Trifecta) to Ms Botha or her nominees.

 

1. 2005 to 2008. The Department signed more than 6 leases with Trifecta to the value of approximately R98 million.

 

1. 2006. Ms Botha’s niece Angelique Botha is appointed at Trifecta to liaise with government departments.

 

1. May 2009. Ms Botha resigned from the Department to become a Member of Parliament.

 

1. September 2009. Renovations commenced at Ms Botha’s residence in Kimberly by Trifecta’s building contracting company Pasch and Malan.

 

1. 20 January 2010. The Jyba Trust was established with Ms Botha’s nieces and nephews as Trustees with the funds from the 10% in Trifecta Investment Holdings. Angelique Botha is a trustee of the JYBA trust. The Capital and income beneficiaries in the trust are Angelique Botha, Jacquline Botha, Nicole Yolanda Mariska Arlow Anthony Christoper Arlow and Andea Tama Botha.

 

1. 20 July 2010. Ms Botha submitted a declaration of interests to the Registrar.

 

 

1. September 2010. Building work on Ms Botha’s house ended costs exceed R1.2 million.

 

1. February 2011 Mail and Guardian publishes allegations.

 

1. February 2011 Investigation by the Joint Committee on Ethics and Members’ Interests commences.

 

1. February 2011. Ms Botha submitted a sworn affidavit supported by a sworn affidavit by Mr. Christo Scholtz, Head of Trifecta Investment Holdings that she had obtained a loan of R500, 000 for the renovation of her house. She does not mention repayment or additional costs

 

1. April 2011.Payment of loan account.

 

1. May 2011. Applies for a home loan

 

1. Mar 2011 Trifecta completes its financial statements indicating the loan.

 

 

The Report is tabled for consideration and Adoption by the National Assembly.

 

 

 

 

 

_____________________ _____________________

Mr B Turok Mr BL Mashile

Co Chairperson Co Chairperson