South African High Court reverses ID fraud conviction of Busisiwe Ndabezitha
High Court overturns conviction of Busisiwe Ndabezitha, revealing critical flaws in the legal proceedings surrounding her false claim of motherhood to assist a foreign national in obtaining a South African ID.
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Busisiwe Ndabezitha, who falsely claimed to be the mother of a foreign national in an attempt to assist him in obtaining a South African ID, has had her conviction and sentence for contravening the Immigration Act overturned.
This decision came after a magistrate made an error in sentencing her.
Ndabezitha misrepresented herself to the Department of Home Affairs, asserting that she was the mother of Jerry Chiwambo. During the trial, however, she broke down while being questioned by the department, which led to the revelation of their scheme. Both individuals were arrested but underwent separate trials in October 2024.
Chiwambo faced charges of fraud, as well as contraventions of the Refugees Act and the Immigration Act. Ndabezitha was charged with fraud and contraventions of both the Identification Act and the Immigration Act.
Ultimately, the charges of fraud and contravention of the Identification Act against Ndabezitha were withdrawn, and she pleaded guilty to the contravention of the Immigration Act.
On December 4, 2024, the Durban Magistrate's Court sentenced Ndabezitha to a fine of R6000 or a six-month prison term, all of which was suspended for five years under certain conditions. However, the sentence was flagged as problematic during a routine review of decided cases by a committee at the Durban Magistrate's Court, prompting a review by the Pietermaritzburg High Court.
High Court judges Robin Mossop and Murray Pitman determined that Ndabezitha's guilty plea was flawed, as it lacked an admission that she was a civil servant—a necessary condition for conviction under the relevant section of the Immigration Act.
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,” said the Judges
Consequently, the High Court concluded that the conviction could not stand. They also pointed out that the magistrate's imposed sentence did not comply with the requirements of Section 302 of the Act.
The High Court sought an explanation from the magistrate, who is no longer employed at the Durban Magistrate's Court.
“I respectfully concede that I erroneously convicted Ndabezitha of contravening the provisions of Section 49 of the Immigration Act 13 of 2002,” says the magistrate
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.”