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Fakudze v S (AR410/2018) [2019] ZAKZPHC 32 (7 June 2019)

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Criminal Law
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Brief Summary

Criminal Law — Trafficking in Persons — Appeal against conviction and sentence — Appellant convicted of trafficking in persons and rape, sentenced to life imprisonment — Appeal court finds that the State failed to prove trafficking beyond a reasonable doubt, leading to the conviction on count 1 being set aside, while upholding the conviction for rape and dismissing the appeal against the sentence for rape.

Comprehensive Summary

Summary of Judgment


1. Introduction


This matter was an appeal to the KwaZulu-Natal Division of the High Court, Pietermaritzburg, against convictions and sentences imposed by the Regional Court, Durban, sitting as a court of first instance. The appellate court comprised Poyo Dlwati J and Masipa J.


The parties were Makhosini Mathews Fakudze as the appellant and the State as the respondent. The proceedings arose from the appellant’s conviction on three counts, namely trafficking in persons (count 1), rape on diverse occasions (count 2), and an immigration offence (count 3). The regional court convicted the appellant on 15 March 2017 and sentenced him on 22 March 2017 to life imprisonment on counts 1 and 2, and twelve years’ imprisonment on count 3.


Although the appellant exercised an automatic right of appeal under section 309(1)(a) of the Criminal Procedure Act 51 of 1977, the appeal as pursued was directed at the sentences on counts 1 and 2. However, the High Court (invoking its inherent jurisdiction) also considered the correctness of the conviction on count 1. Prior to the hearing, the court requested supplementary heads of argument from both parties specifically addressing the trafficking conviction.


The general subject-matter of the dispute concerned whether the proven facts justified a conviction for trafficking in persons under the Prevention and Combating of Trafficking in Persons Act 7 of 2013, and whether the sentence of life imprisonment for rape on diverse occasions was liable to interference on appeal.


2. Material Facts


The complainant was the appellant’s stepdaughter: the appellant was married to the complainant’s mother, and they lived together in Swaziland in a home rented by the appellant. The appellant and the complainant’s mother had two children together. While the complainant was still a child (about 12 years old), the appellant began having sexual intercourse with her without her consent. The complainant reported the abuse to her mother, but the mother did not believe her and responded in a manner that, on the complainant’s version, did not lead to protection or intervention. The complainant also reported the matter to teachers, and it was reported onwards, but she did not know the outcome.


In 2014, the appellant and the complainant’s mother had relationship difficulties, culminating in the mother leaving the home. The complainant remained behind with the appellant and the two younger children. The appellant left with his children and went to the station, intending to travel to South Africa. The complainant, fearing being left without support and perceiving the risk of becoming a street child, decided to follow and asked to go with them. The complainant’s evidence was that the appellant initially refused but later agreed.


The group travelled to South Africa around October 2014, and the complainant did so without travel documents or a birth certificate. They stayed at a home in Jozini in northern KwaZulu-Natal. The complainant’s evidence was that there was no abuse until the end of 2014.


During 2015, the appellant resumed and escalated sexual abuse, including repeated rape on diverse occasions. The complainant testified that she was prevented from going out to play with other children and was threatened with death if she disclosed the abuse. She later became pregnant; after medical confirmation and subsequent childbirth on 29 January 2016, she reported the abuse at the hospital. The appellant was arrested, and the complainant was taken to a place of safety. A paternity test (confirmed by buccal swabs) established that the appellant was the father of the complainant’s baby; this was common cause because the appellant admitted the paternity test result under section 220 of the Criminal Procedure Act 51 of 1977.


The case posture at trial materially narrowed the factual disputes. After the complainant testified, the appellant made formal admissions in terms of section 220 that he had unlawfully and intentionally committed sexual penetration with the complainant on diverse occasions without her consent (count 2). He also pleaded guilty to the immigration offence (count 3) and, in a section 112 explanation, admitted unlawful entry into South Africa. The appellant nevertheless disputed that he had trafficked the complainant to South Africa (count 1) and did not testify.


The trafficking count turned on whether the State proved that the appellant transported/harboured the complainant across the border by one of the statutory “means” (including abuse of vulnerability) for the purpose of exploitation, as contemplated by the Trafficking Act, on the specific factual matrix that the complainant decided to follow the appellant and persuaded him to allow her to travel with them.


3. Legal Issues


The central legal question on count 1 was whether the proven facts established the offence of trafficking in persons under section 4(1) of the Prevention and Combating of Trafficking in Persons Act 7 of 2013, in particular whether the complainant’s movement and subsequent stay with the appellant in South Africa occurred by one or more of the listed statutory “means,” especially “abuse of vulnerability” as defined in section 1, and whether this was done for the purpose of exploitation (here alleged to be exploitation through sexual abuse/rape).


This dispute primarily concerned the application of law to fact: the facts about the complainant’s decision to follow, the appellant’s initial refusal, the existence of potential alternatives, and the timing of later abuse were evaluated against the statutory elements of trafficking. The appellate court also had to assess whether the regional court’s inference—that the complainant was brought to South Africa for sexual exploitation—was the only reasonable inference available on the evidence, and whether guilt was proved beyond reasonable doubt.


The central issue regarding count 2 was whether the sentence of life imprisonment for rape on diverse occasions (a statutorily serious category of sexual offence) was susceptible to interference on appeal, including whether substantial and compelling circumstances existed to justify a deviation from the prescribed minimum sentence regime. This component engaged a mixture of sentencing discretion and the statutory threshold for departure from prescribed sentences, together with a value judgment regarding mitigating and aggravating factors.


4. Court’s Reasoning


On count 1, the High Court set out the statutory framework of section 4(1) of the Trafficking Act. The offence requires conduct such as delivering, recruiting, transporting, transferring, harbouring or receiving a person within or across South Africa’s borders, coupled with one of the listed means (including threats, coercion, deception, or abuse of vulnerability), done for the purpose of exploitation. The court also referred to the statutory definition of “abuse of vulnerability” in section 1, emphasising that it entails conduct leading a person to believe that there is no reasonable alternative but to submit to exploitation, and may include vulnerabilities associated with being a child, social circumstances, or being in the Republic without proper documentation.


Applying these provisions to the evidence, the High Court focused on the complainant’s account that the appellant left the Swaziland home with his children and that the complainant chose to follow him. The court reasoned that the evidence did not establish that the appellant knew she would follow him or that he had planned to take her along as part of a trafficking design. The court attached weight to the complainant’s own testimony that the appellant did not immediately agree to her request to accompany him, which, in the court’s view, undermined an inference that the appellant was actively using the complainant’s vulnerability as a mechanism to transport her for exploitation.


A further factor in the court’s reasoning was the presence of other potential alternatives available to the complainant, as reflected in the record: possible efforts to trace her mother, possible temporary accommodation with a family friend, possible placement with her father’s family (even though she was disinclined due to their lifestyle), or possible approach to the police and social services. The court treated the availability of these possible routes as bearing on whether it could be said that the complainant had no reasonable alternative but to accompany the appellant, which is integral to the statutory concept of “abuse of vulnerability” as relied upon in argument.


The High Court also considered timing and purpose. On the complainant’s evidence, there was no abuse for the remainder of 2014 after arrival in South Africa, and abuse recommenced later. The court treated this hiatus as additional support for the conclusion that the State had not proved, beyond reasonable doubt, that the appellant brought the complainant into South Africa for the purpose of sexual exploitation at the time of the cross-border movement and harbouring. In consequence, the court held that the regional court’s conclusion—that the only reasonable inference was that the appellant harboured the complainant for exploitation—was not supported by the evidence or the law.


The State’s counsel conceded in argument that the conviction on count 1 could not be supported on the record, and the High Court agreed. The court concluded that the evidence fell short of proving trafficking beyond reasonable doubt, with the result that the conviction and sentence on count 1 could not stand.


On sentence for count 2, the High Court held that there was no basis to interfere with the regional court’s sentencing discretion. The court noted that counsel for the appellant could not point to any misdirection by the magistrate and could not advance significant mitigating factors. It accepted that the regional court had applied the traditional sentencing triad from S v Zinn 1969 (2) SA 537 (A) and had concluded that no substantial and compelling circumstances justified deviation from the prescribed sentence.


The High Court addressed the only arguable mitigating consideration identified, namely that the appellant was the primary caregiver to his two other children. It held that this factor had been dealt with in the court below on the evidence that the children were placed in the same place of safety as the complainant and were cared for. The court relied on S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) for the proposition that primary caregiver status does not, without more, exempt an offender from imprisonment, because the interests of children must be weighed alongside the seriousness of the offence and other sentencing considerations.


In evaluating aggravation, the High Court emphasised the appellant’s abuse of a position of trust as stepfather, the complainant’s continued reference to him as “father,” the sustained and coercive nature of the rapes, the complainant’s lost childhood and curtailed freedom, and the lasting consequences reflected in the existence of the child born from the abuse. The court expressly invoked the complainant’s constitutional right to be protected as a child under section 28 of the Constitution and treated the offences as serious and heinous. On this basis, it held that any mitigating considerations were outweighed and that life imprisonment on count 2 was justified within the statutory sentencing framework.


5. Outcome and Relief


The High Court made an order setting aside the conviction and sentence on count 1 (trafficking in persons). The conviction on count 2 (rape on diverse occasions) was confirmed, and the appeal against the sentence on count 2 was dismissed, with the result that the sentence of life imprisonment on count 2 remained in place.


The judgment, as reported, did not record any separate or special order as to costs, which is consistent with the usual position in criminal appeals.


Cases Cited


S v Zinn 1969 (2) SA 537 (A).


S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC).


Legislation Cited


Prevention and Combating of Trafficking in Persons Act 7 of 2013 (sections 1 and 4(1), and references to sections 3, 10, 11, 12, 13 and 14 as part of the charge formulation).


Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (section 3).


Immigration Act 13 of 2002 (section 49(1)(a)).


Criminal Procedure Act 51 of 1977 (sections 112, 220, and 309(1)(a)).


Criminal Law Amendment Act 105 of 1997 (section 51 and Part I of Schedule 2, as referenced in the charge formulation).


Constitution of the Republic of South Africa, 1996 (section 28).


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The court held that the State failed to prove beyond reasonable doubt that the appellant committed trafficking in persons under section 4(1) of the Prevention and Combating of Trafficking in Persons Act 7 of 2013, on the facts that the complainant decided to follow the appellant to South Africa, the appellant initially refused to take her, she had potential alternatives, and the evidence did not justify an inference that the cross-border movement and harbouring were effected through “abuse of vulnerability” and for the purpose of exploitation as required by the statute.


The court held further that the conviction for rape on diverse occasions stood on the appellant’s admissions and the common-cause paternity evidence, and that the sentence of life imprisonment on that count was not shown to be vitiated by misdirection nor rendered unjust by substantial and compelling circumstances. The appellant’s caregiver status in relation to other children did not justify deviation, particularly in light of the seriousness of the offence and the children’s placement in care.


LEGAL PRINCIPLES


The statutory offence of trafficking in persons under section 4(1) of the Trafficking Act requires proof not only of cross-border transportation/harbouring (or similar conduct) but also proof that such conduct occurred by one or more specified means and for the purpose of exploitation. Where the State relies on abuse of vulnerability, the evidence must support the statutory notion that the accused’s conduct led the person to believe there was no reasonable alternative but to submit to exploitation, assessed on the facts proved.


A conviction dependent on inferential reasoning must be supported by evidence from which the inference of guilt is justified; where the evidence does not support the conclusion that the alleged trafficking purpose was the only reasonable inference, and where proof beyond reasonable doubt is not met, the conviction cannot stand.


In sentencing for serious sexual offences subject to prescribed minimum sentences, the court applies established sentencing principles (including the triad in S v Zinn) and may deviate from prescribed sentences only upon a finding of substantial and compelling circumstances. The fact that an offender is a primary caregiver is relevant but not determinative and does not automatically preclude imprisonment; it must be balanced against the gravity of the offence and the interests of justice, as underscored in S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC).

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[2019] ZAKZPHC 32
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Fakudze v S (AR410/2018) [2019] ZAKZPHC 32 (7 June 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-
NATAL DIVISION, PIETERMARITZBURG
Case
No: AR410/2018
In
the matter between:
MAKHOSINI
MATHEWS FAKUDZE
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Poyo
Dlwati et Masipa JJ
Heard
:
31
May 2019
Delivered
:
7
June 2019
ORDER
On
appeal from:
Regional
Court, Durban (sitting as court of first instance):
(1)
The
conviction and sentence on count 1 is set aside;
(2)
The
conviction on count 2 is confirmed;
(3)
The
appeal against sentence on count 2 is dismissed.
JUDGMENT
Poyo
Dlwati J:
[1]
On
15 March 2017 the appellant was convicted by the regional court
sitting in Durban of one count of trafficking in persons in
contravention of s4(1) of the Prevention and Combating of Trafficking
in Persons Act 7 of2013 ('the Trafficking Act') (count 1),
one count
of rape on diverse occasions (in contravention of section 3 of
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32
of 2007) (count 2), and one count of entering or remaining in the
Republic without a valid permit, being an immigration
offence (in
contravention of section 49(1)(a) of the Immigration Act 13 of2002).
On 22 March 2017 the appellant was sentenced to
life imprisonment in
respect of counts 1 and 2, and twelve years' imprisonment in respect
of count 3. The appellant exercised his
automatic right of appeal (as
provided for in s309 (1) (a) of the Criminal Procedure Act 51 of 1977
('the Act'), and appealed against
the sentences imposed in count 1
and 2. However, for reasons which will be apparent below and
exercising the inherent jurisdiction
that this court has, we also
considered the correctness of the conviction on count 1.
[2]
The
brief background to the charges was that the appellant was married to
the complainant's mother. The complainant was therefore
his
stepdaughter. They all resided in Swaziland at a home rented by the
appellant. The appellant and the complainant's mother had
two
children. When the complainant was about 12 years old, the appellant
started having sexual intercourse with the complainant
without her
consent. When she reported the incident to her mother, she did not
believe her. When the complainant showed her mother
her blood­
stained clothes after the appellant had sexual intercourse with her,
the complainant's mother said that her clothes
should be burnt. Even
though the complainant reported the incident to her teachers, who in
tum reported the matter to the police,
the complainant, however, did
not know what became of the case.
[3]
During
2014, the appellant and the complainant's mother had some
disagreements. The appellant found the complainant's mother with

another man. He then chased her away from their home. The
complainant's mother left their home the following morning, leaving
the complainant behind with the appellant and two other children.
When the complainant requested to go with her, she ignored her.
The
appellant took his two children, locked the house and went to the
station. The complainant remained outside their home. She
did not
know where her mother went, but knew that the appellant was going to
South Africa. After a few minutes, and after having
considered how
she would survive if she remained there, she decided to follow the
appellant as she feared becoming a street child.
She also thought
that perhaps the appellant would not abuse her again.
[4]
The
complainant went to the station and found the appellant. She begged
the appellant let her go with them. Even though he initially
refused,
he later agreed. They left Swaziland and came to South Africa during
October 2014. She did not have any travelling documents
or a birth
certificate to enable her to come to South Africa. When they arrived
in South Africa, they stayed in a certain home
in Jozini in northern
KwaZulu-Natal. Everything seemed fine and there was no abuse until
the end of 2014.
[5]
Sometime
in 2015 the appellant started touching the complainant's breasts and
private parts. He also had sexual intercourse with
her many times on
diverse occasions without her consent. He also never allowed her to
go out of the house and play with other children.
He told her to keep
quiet, and would threaten to kill her if she told anyone. He would
remind her that he supported her every day
and was doing everything
for her.
[6]
The
appellant would not always use protection when he had sexual
intercourse with the complainant. She felt like he was treating
her
as his wife as he also made her cook for the other children and wash
their clothes. The complainant could not say whether the
other
children knew what the appellant was doing to her, as sometimes the
appellant would send them to the shop or other times
they would be
playing outside the house when the sexual abuse occurred. At times
the children would see the complainant crying,
and when they asked
her what was wrong she would tell them that everything was fine and
she would be okay. She used to feel pain
when the appellant was
having sexual intercourse with her and she thought that her bladder
was injured.
[7]
According
to the complainant, the appellant stopped having sexual intercourse
with her when he realised that she was pregnant. She
initially did
not know that she was pregnant and thought that she had just gained a
lot of weight. A neighbour told her that she
was pregnant as her
tummy was getting bigger. She also slept a lot during the day and was
getting tired. She also felt some kicking
in her abdomen. The
appellant took her to the hospital for a check-up. At the hospital,
it was confirmed that she was pregnant.
The complainant believed that
the appellant was the father of her child as he was the one who had
sexual intercourse with her without
protection.
[8]
The
complainant was quite anxious about having a baby at her age.
Eventually the baby was born on 29 January 2016. Whilst at the

hospital, she reported the abuse she endured under the appellant's
watch to the nurses. After giving birth to the child, she did
not
return to stay with the appellant. Instead, the appellant was
arrested and she was taken to a place of safety in Ngwelezane.
The
complainant further confirmed that a buccal swab was taken from her
and her baby, by the doctor for the purpose of conducting
a paternity
test, which test result confirmed that the appellant was the father
of her child. This factor was common cause as the
appellant admitted
the results of the paternity test in terms of s220 of the Act.
[9]
Prior
to the cross-examination of the complainant, the appellant's counsel,
after consultation with the appellant, indicated that
he would cross­
examine the complainant on count 1 only, as the appellant would make
admissions in terms of s220 of the Act
in respect of counts 2 and 3.
Under cross-examination it emerged that the complainant's biological
father had died. She, however,
had a paternal uncle whose family
stayed on a farm in Swaziland. It was suggested to her that she could
have gone to stay with
her paternal uncle and family instead of
coming to South Africa with the appellant. Her response was that she
did not like their
way of living, as they at times stole and were
also drinking a lot.
[10]
The
complainant conceded that she chose to come to South Africa with the
appellant, as she thought her life and future would be
better. She
thought that she could finish school and thereafter get a job to
support herself and her siblings. But, that did not
happen. She felt,
at the time, that she had no option but to come to South Africa with
the appellant, as she felt that her mother
had abandoned her. Whilst
she also had an aunt who was her mother's friend, she chose not to go
to her as the aunt's husband did
not like the complainant staying
with her, and he had made this known to her mother.
[11]
After
the complainant's evidence, the appellant made admissions in terms of
s220 of the Act. He admitted having unlawfully and intentionally

committed an act of sexual penetration with the complainant by
inserting his penis into her vagina on diverse occasions, without
her
consent. He further pleaded guilty on count 3, thereby admitting that
he had entered the Republic without a valid permit. In
his plea
explanation in terms of s112 of the Act, he stated that he had
entered South Africa through Jozini and he knew that what
he did was
unlawful, illegal and had no defence in law for his actions. He,
however, disputed that he trafficked the complainant
to South Africa
for any reason. He, however, never testified in his defence.
[12]
The
learned magistrate returned a guilty verdict on all counts, hence the
appeals. Prior to the hearing of the appeal, we requested
both
counsels to submit supplementary heads of argument in relation to the
conviction on count 1 only. They both duly complied,
and we are
indebted to them for their co-operation at such a short notice.
[13]
Ms
Anastasiou, on behalf of the appellant, both in her heads of argument
and during the hearing, submitted that the State had failed
to prove
the appellant's guilt beyond a reasonable doubt on count 1. She
submitted that the learned magistrate erred in finding
that the only
reasonable inference that the court could draw, was that the purpose
for which the accused harboured the complainant,
was for the purpose
of exploitation in the form of rape. Mr Naidoo, on behalf of the
State, correctly in our view, conceded this
factor. We agree. The
learned magistrate's finding on this issue was not supported by the
complainant's evidence nor was it supported
by the law.
[14]
The
appellant was charged with contravening s4(1) read with sections 1,
3, 10, 11, 12, 13 and 14 of the Trafficking Act, and the
relevant
provisions of section 51 and Part I + of Schedule 2 of the
Criminal
Law Amendment Act 105 of 1997
. Section 4(1) of the Trafficking Act
provides that:
'Trafficking
in persons:-
(1)
Any
person who delivers, recruits, transports, transfers, harbours,
sells, exchanges, leases or receives another person within or
across
the borders of the Republic by means of -
(a)
a
threat of harm;
(b)
the
threat or use of force or other forms of coercion;
(c)
the
abuse of vulnerability;
(d)
fraud;
(e)
deception;
(f)
abduction;
(g)
kidnapping;
(h)
the
abuse of power;
(i)
the
direct or indirect giving or receiving of payments or benefits to
obtain the consent of a person having control or authority
over
another person; or
(j)
the
direct or indirect giving or receiving of payments, compensation,
rewards, benefits or any other advantage, aimed at either
the person
or an immediate family member of that person or any other person in
close relationship to that person, for the purpose
of any form or
manner of exploitation, is guilty of the offence of trafficking in
persons.'
[15]
'Abuse
of vulnerability' is defined in s1 as:
'....any
abuse that leads a person to believe that he or she has no reasonable
alternative but to submit to exploitation, and includes
but is not
limited to, taking advantage of the vulnerabilities of that person
resulting from -
(a)
the
person having entered or remained in the Republic illegally or
without proper documentation;
(b)
pregnancy;
(c)
any
disability of the person;
(d)
addiction
to the use of any dependence-producing substance;
(e)
being
a child;
(f)
social
circumstances; or
(g)
economic
circumstances;'
[16]
The
evidence of the complainant was that the appellant left their home
with his two children. She followed them thereafter as she
believed
it was of benefit to her since her mother had abandoned her. It
cannot be said that the appellant would have known or
knew that the
complainant would follow him and ask to go with him. I say so for the
following reasons: -
(a)
the
complainant could have tried to trace her own mother;
(b)
she
could have gone to stay with her mother's friend until her mother was
traced;
(c)
she
could have gone and stayed with her father's family but she did not
like their way of living;
(d)
she
could have gone to the police who, maybe would have taken her to
social workers so that she could be placed in a children's
home.
[17]
As
the complainant testified, the appellant did not immediately agree
that she could go with him. It therefore cannot be said that
the
appellant used or abused the vulnerability of the complainant. He did
not seem to have had any intentions of leaving with the
complainant.
It cannot be said that the complainant did not have another
reasonable alternative but to go with the appellant. Furthermore,
the
appellant did not abuse the complainant for the remainder of 2014,
another justification why it could not be said that he had
brought
the complainant to South Africa for the purpose of sexually
exploiting her. In my view, therefore, the evidence fell short
of
proving the appellant's guilt beyond reasonable doubt on this count.
It follows that the conviction and sentence on count 1
ought to be
set aside.
[18]
With
regard to the sentence on count 2, Ms Anastasiou was unable to point
out any misdirection by the learned magistrate. She was
equally
constrained to point out any mitigating factors in favour of the
appellant. The learned magistrate, in her judgment, applied
her mind
to the triad enunciated in S
vs
Zinn.
[1]
She
did not find any substantial and compelling circumstances that
justified deviating from the prescribed sentences. We could likewise

not find any.
[19]
The
only factor that could be considered as mitigating, was the fact that
the appellant was the primary care giver to his two other
children,
and that the court ought to have shown some measure of mercy in such
circumstances. This issue was dealt with by the
learned magistrate as
the evidence presented to her was that the appellant's children were
taken to the same place of safety as
the complainant and they were
well looked after. This was not disputed. As held in S
v
M (Centre for Child Law as Amicus Curiae
[2]
,
a
primary caregiver does not necessarily escape imprisonment because of
the children. The aggravating factors will still be considered,
which
in circumstances of this case far outweigh any mitigating factors.
[19]
The
appellant abused his stepdaughter. He made her his wife, although it
was the complainant's mother who was his wife. He was in
a position
of trust, and the complainant looked up to him as her father. The
complainant continued, even at court during the trial,
to refer to
the appellant as 'father'. The appellant betrayed that trust. He took
away her childhood as she could no longer go
and play with other
children. He took away her right to be a child as enshrined in s28 of
the Constitution. What he did to this
child was heinous and cannot
warrant that any form of mercy be shown to him. As contained in the
complainant's victim impact statement,
which was admitted into
evidence in the court
a
quo,
she
will always have a reminder of her abuse by the appellant in the form
of her baby. He could even be a danger to his own children
and
deserve to be removed from society for a lengthy period. I, therefore
agree that any mitigating factor is neutralised when
having regard to
the circumstances of this matter.
[20]
Accordingly,
I make the following order:
(1)
The
conviction and sentence on count 1 is set aside;
(2)
The
conviction on count 2 is confirmed;
(3)
The
appeal against sentence on count 2 is dismissed.
POYO
DLWATI J
MASIPA
J, I agree
APPEARANCES
Date
of Hearing

: 31 May 2019
Date
of Judgment

: 07 June 2019
Counsel
for Applicant

: Ms Anastasiou
Instructed
by

: Justice Centre, Pietermaritzburg
Respondent

: Mr Naidoo
Instructed
by

: Director of Public Prosecutions Pietermaritzburg
[1]
S v Zinn
1969 (2) SA 537 (A).
[2]
[2007] ZACC 18
;
2008 (3) SA 232
CC para 107

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