Woman walks 'free' after judges flag magistrate's sentencing error

THE Pietermaritzburg High Court has set aside the conviction and sentence of a woman who falsely claimed to be the mother of a foreign national in an attempt to help him obtain a South African ID.

This was after the magistrate conceded to making an error during sentencing proceedings. The error was flagged as problematic during a random process of checking decided cases by a committee at the Durban Magistrate's Court, leading to a Pietermaritzburg High Court review.

High Court judges Robin Mossop and Murray Pitman found that Busisiwe Ndabezitha's guilty plea was flawed because it lacked an admission that she was a civil servant—a prerequisite for conviction under the specific section of the Immigration Act. 

Ndabezitha had falsely represented to the Department of Home Affairs that she was the mother of Jerry Chiwambo. However, Ndabezitha broke down during questioning by the department, revealing their scheme. They were both arrested but had separate trials in October 2024. 

Chiwambo was charged with fraud, contravention of the Refugees Act, and contravention of the Immigration Act. Ndabezitha was charged with fraud, contravention of the Identification Act, and contravention of the Immigration Act. However, Ndabezitha’s fraud and contravention of the Identification Act charges were withdrawn. She then pleaded guilty to the contravention of the Immigration Act. 

On December 4, 2024, the Durban Magistrate's Court sentenced her to pay a fine of R6000 or be imprisoned for six months, all of which was suspended for a period of five years on certain conditions. 

However the judges noted: “To be convicted as she was, she had to be a civil servant. The fact is that she was not a civil servant. It is not clear from the papers whether she was even employed.”

The High Court therefore concluded that the conviction could not stand. Furthermore, they pointed out that the magistrate's imposed sentence did not comply with the requirements of s302 of the Act.

The high court sought an explanation from the magistrate, who is no longer employed at the Durban Magistrate's Court. The magistrate conceded: “I respectfully concede that I erroneously convicted Ndabezitha of contravening the provisions of Section 49 of the Immigration Act 13 of 2002.”

Finding the magistrate's explanation unhelpful, the high court ordered: “It would be safer to simply set aside the conviction and sentence and allow the Director of Public Prosecutions to decide whether to reinstate the charges.”

Cape Times