SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: CC46/2019
In the matter between:
THE STATE
and
EDWARD AYUK Accused 1
LEANDRE WILLIAMS AYUK Accused 2
YANNICK AYUK Accused 3
__________________________________________________________________
JUDGMENT: SENTENCING
__________________________________________________________________
DE WET, AJ:
[1] This matter has come to the stage where an appropriate sentence for the
crimes of which the accused were found guilty needs to be determined.
2
[2] On 24 May 2024 a ccused 1 was convicted of 28 counts ranging from human
trafficking, using the services of a vict im of human trafficking, living on the proceeds
of prostitution, kidnapping, assault with the intention to do grievous bodily harm and
dealing in drugs. Accused 2 was convicted on 3 counts of human trafficking and
accused 3 was convicted of 3 counts of hum an trafficking, 3 counts of using the
services of a victim of hum an trafficking, 3 counts of living on the earnings of
prostitution and 3 counts of kidnapping.
[3] It has often been stated that p unishment must fit the criminal, as well as the
crime, be fair to society and be blended with a measure of mercy. When sentencing,
a court is required to consider the four objectives of punishment (deterrence,
prevention, rehabilitation and retribution) in view of the triad of factors as set out in S
v Zinn 1969 (2) SA 537 (A) which are the personal circumstances of the offender, the
nature and seriousness of the offence committed and the interests of society.
[4] Section 51(1) of the Criminal Law Amendment Act 105 of 1997 (the “CLAA”)
prescribes the minimum sentence applicable on the charges of trafficking in persons
for sexual purposes as a sentence of life imprisonment and/or a R100 million fine.1
[5] In terms of the provisions of s 51(2) of the CLAA the applicable sentence on
the charges relating to using the services of a victim of trafficking attracts a minimum
sentence of 15 years imprisonment and/or a fine , and t he conviction on the
possession and confiscation of an identification document attra cts a minimum
sentence of 10 years imprisonment and/or a fine.
[6] With reference to count 33, s 51 (2)(a) of the CLAA, Part III of Schedule 2,
prescribes that the minimum sentence for a first offender is imprisonment for a
1 Section 13(1) of the Human Trafficking Act stipulates that the penalty for a person convicted of an
offence referred to in section 4(1) is, subject to s 51 of the CLAA, a fine not exceeding R 100 million
or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine or
both.
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period not less than 10 years f or assault with intent to do grievous bodily harm on a
child under the age of 16 years.
[7] It is trite that unless a cou rt is satisfied that substantial and compelling
circumstances exist which justify the imposition of a lesser sentence as regulated in
s 51(3) of the CLAA, the minimum prescribed sentence must be imposed.
[8] Section 51(3) (a) dictates that: "If any court referred to in subsection (1) or (2)
is satisfied that substantial and compelling circumstances exist which justify the
imposition of a lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances on the record of the proceedings and may thereupon
impose such lesser sentence."
[9] In S v Fatyi 2001 (1) SACR 485 SCA , Melunsky AJA at p 488 para [5] (with
reference to the case of S v Malgas 200 1 (2) SACR 469 (SCA) ), considered the
criteria pertaining to the determination of what sub stantial and compelling
circumstances are, as follows: “The first is that a court has the duty to consider all
the circumstance s of the case, including the many factors traditionally taken into
account by courts when sentencing offenders (para [9]). It follows, too, that for the
circumstances to qualify as substantial and compelling they need not be exceptional
in the sense of sel dom encountered or rare (para [10] ), nor are they limited to those
which diminish the moral guilt of the offender (para [24]). Generally, however, the
Legislature aimed at ensuring a severe, standardised and consistent response from
the courts unless there were, and could be seen to be, truly convincing reasons for a
different response. In other words the prescribed sentences were to be regarded as
generally approp riate for the crimes specified and should not be departed from
without weighty justification f or doing so (para [8] and [18]). Where the court is
convinced, on a consideration of all the circumstances, that an injustice will be done
if the minimum sentence is imposed, it is entitled to characterise the circumstances
as substantial and compelling (para [22]).”
[10] In S v Matyitityi 2011(1) SACR 40 (SCA) the court cautioned against deviation
from the minimum sentences as prescribed by the legislature for flimsy reasons as
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there is a duty on the Courts, despite any personal doubts about the efficiency of the
policy, or aversion to it, to implement those sentences.
[11] Section 14 of the Prevention of and Combating of Trafficking in Persons Act 7
of 20 13 (the “Human Trafficking Act ”) dictates that if a person is convicted of any
offence under Chapter 2, the court that imposes the sentence must consider, but is
not limited to, the following aggravating factors:
“..
(a) The significance of the role of the convicted person in the
trafficking process;
(b) previous convictions relating to the offence of trafficking in
persons or related offences;
(c) whether the convicted person caused the victim to become
addicted to the use of a dependence-producing substance;
(d) the conditions in which the victim was kept;
(e) whether the victim was held captive for any period;
(f) whether the victim suffered abuse and the extent thereof;
(g) the physical and psychological effects the abuse had on the
victim;
(h) whether the offence formed part of organised crime;
(i) whether the victim was a child;
(j) the nature of the relationship between the victim and the
convicted person;
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(k) the state of the victim’s mental health; and
(l) whether the victim had any physical disability.”
[12] The objects of the Human Trafficking Act are set out in s 7 as:
“The objects of this Act are to-
(a) give effect to the Republic’s obligations concerning the trafficking of
persons in terms of international agreements;
(b) provide for the prosecution of persons who commit offences referred to
in this Act and for appropriate penalties;
(c) provide for the preventi on of trafficking in persons and for the protection
of and assistance to victims of trafficking;
(d) provide services to victims of trafficking;
(e) provide for effective enforcement measures;
(f) provide for the co -ordinated implementation, application and
administration of this Act, including the development of a draft national
policy framework; and
(g) combat trafficking in persons in a co-ordinated manner.”
[13] Section 10 of the Human Trafficking Act stipulates that:
“(1) Any person who –
(a) attempts to commit or performs any act aimed at participating in
the commission of;
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(b) incites, instigates, commands, directs, aids, promotes, advises,
recruits, encourages or procures any other person to commit; or
(c) conspires with any other person to commit, an offence under this
Chapter is guilty of an offence.
(2) A person who is found guilty of an offence referred to in subsection (1)
is liable, on conviction, to the penalties for the offence in question, as provided
for in section 13.”
[14] In terms of s 17 of the Drugs and Drug Trafficking Act 140 of 1992 , a person
convicted of an offence under th at Act shall be liable in the case of an offence
referred to in s 13(e), to a fine or imprisonment not exceeding 10 years.
[15] During the sentencing proceedings the court received pre-sentencing reports
in respect of accused 1 and 3 and a pre-sentencing report and additional social
worker reports in respect of accused 2. Victim impact reports in respect of [CJ] dated
12 July 2024, [SM] dated 18 March 2022, [MA] dated 22 March 2022, [ND], dated 2
September 2022, [SD] dated 22 July 2022 and [SN] dated 25 September 2024 were
also submitted. I do not repeat the contents of the reports herein as it forms part of
the record of proceedings as the reports were admitted as exhibits.
Accused 1: personal circumstances
[16] Accused 1 is a 44 -year-old male from Cameroon who came to South Africa in
2006 due to civil unrest in his home country. He married accused 2 on 10 September
2008 in community of property and they are still so married. T hey have two minor
dependent children. They are being cared for at the J[...] Child and Youth Care
Centre in t erms of 150(1)(a) of the Children’s Act 38 of 2005. The children were
living with accused 2 in Springbok when accused 1 was arrested in September 2017.
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[17] The accused c ompleted high school and previously worked as a street vendor
and also operated tuck shops for income. He also traded in vehicles and helped out
at his uncle’s2 night club in Long Street, Cape Town from time to time.
[18] Accused 2 moved to Springbok during about 2012 after the birth of their second
child. He remained in contact with the minor children . His evidence was that he
collected them from time to time in Springbok or would arrange for them to come to
him with a Taxi. He contributed to their maintenance by buying clothes and sending
money from time to time . He stop ped contributing to their maintenance when
accused 2 received a pay out from the Road Accident Fund.
[19] Accused 1 is a devout and practising Roman Catholic. He suffers from chronic
kidney stones but is otherwise in good health. He does not use drugs and is not
affiliated with any gangs. His father passed away from a stroke after his incarceration
and his mother is sickly.
[20] He has no previous convictions.
[21] He was arrested on 12 September 2017 and has been awaiting trial in custody
since. This is a substantial period.3 He did not apply for bail.
[22] He persists that he is not guilty of any of the charges he was convicted of. He
maintains that the police ha ve fabricated the charges against him and ha ve
influenced all the witnesses and other police officers to level the false charges
against him and the other accused.
Accused 2: personal circumstances
2 Mr Charles Ayuk is also referred to as the cousin brother of accused 1 and 3.
3 The cases against the accused in Springbok and Maitland were consolidated and transferred from
the Regional Court to the High Court. The trial only commenced in November 2021 in the High Court
and the record of proceedings reflects the various challenges encountered to finalize the matter.
These included but w ere not limited to the use of more than one interpreter, the transportation and
availability of witnesses from different provinces, the person al circumstances of the victims and
witnesses, the systemic issues pertaining to criminal trial s in the Western Cape High Court , the Covid
19 pandemic and various other issues. These delays cannot be ascribed to the accused.
8
[23] Accused 2 is a 40-year-old female and was arrested on 11 September 2018.
She was initially detained at the Upington Correctional Facility. On 3 February 2018
she was transferred to the Pollsmoor W omen’s Prison. She was released on bail on
20 August 2021. She has been in custody since she was convicted on 24 May 2024.
[24] The accused has 4 children, namely: [CAW] who was born on 25 November
2002 (he is 21 years old), [AA] who was born on 28 March 2008 (he is 16 years old),
[JW] who was born on 4 March 2012 (she is 12 years old) and [EW] was born on 24
August 2016 (he is 8 years old).
[25] The accused instituted divorce proceedings through Legal Aid South Africa in
March 2017 in the Regional Division of the Magistrate’s Court of Springbok . The
divorce summons has not been served.
[26] A pre-sentence report compiled by Mr. Leo [Exhibit “CCC”] was admitted into
evidence as well as a report s from the Executive Welfare Council of the AFM of SA
compiled by Ms. A.E. van der Westhuizen [ Exhibits "DDD" and “EEE”] on behalf of
accused 2.
[27] Accused 2, her older brother and her oldest son, [CAW] testified in mitigation
of sentence. Accused 2 testified that she had witnessed and was exposed to sexual
abuse and rape during her formative years and admitted to working as a prostitute
and using drugs. She testified, for the first time, that she was also abused and
assaulted by accused 1 on several occasions in a similar manner as testified to by
the victims. She also reported the abuse suffered a t the hands of accused 1 to the
social worker, Mr Leo, who recorded same in his report. Her belated statements in
this regard were corroborate by her son and one of the victims [SM]. According to Mr
Leo, [SM] told him that accused 2 on various occasions ca me to her assistance and
diverted blows meant for her from accused 1. Her brother denied any knowledge of
these assaults, persisted that accused 1 is a good person and stated he had no
knowledge that accused 2 worked as a sex worker.
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[28] She testified that the reason why she spoke loudly at times during the court
proceedings, was due to her having partially lost her hearing as a result of an assault
on her by accused 1. She also had a metal pin in her ankle resulting from an assault
by accused 1 on her.
[29] Accused 2 left home at a young age and looked after herself. She realised
that by using her sexuality and looks, she could live from favours bestowed upon her
by men. Eventually she earned a living as a sex worker. Apparently, she did not at
first realise that sex work was frowned upon.
[30] After accused 2 left accused 1 to live with her children in Springbok, accused
1 contributed to the children’s maintenance but he stopped when she received a
payout from the Road Accident Fund. Accused 2 used these funds to buy a property
in Springbok in h er children’s name. She sold alcohol and operated a brothel from
her garage to earn an income. This property is currently being rented out.
[31] Whilst awaiting the finalisation of the trial and even though she was out on
bail, accused 2 could not manage to fi nd sustainable income and reverted to do ing
sex work.
[32] Accused 2 testified that she was traumatised by hearing the abuse suffered
by the Springbok victims as she suffered the same abuse and had the same fear of
accused 1 . She stated during cross -examination that accused 1 treated them like
animals by controlling and dominating them.
[33] She admitted that she was responsible for introducing the victims to accused
1 and apologized in court for her role in the trafficking although she still denied that
she was aware of the business operated from the premises in Brooklyn. She
acknowledged that had it not been for her they would not have known accused 1.
[34] Accused 2 has seen her minor children only once during the 4 years she was
out on bail. Her expl anation for the minimal contact is that they are living at a facility
in the Northern Cape, which is very far away.
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[35] [CAW] testified that accused 2 was a good mother who always wanted the
best for her children. According to hi m she sent him to live with his father when he
was only 3 years old, as she wanted to protect him from the abusive conduct of
accused 1. Accused 2 testified in the trial that she sent him away as she was so in
love with accused 1. According to the evidence of [CAW], accused 2 always gave
him money and nice clothing when he saw her. After she moved to Springbok in
2012 he started living with her again.
[36] He expressed the view that he believed that his mother could turn her life
around. He testified that he did not know that accused 1 was selling alcohol from
their garage in Springbok or that she was a sex worker. He stated that if she had
done so it was for her children.
[37] He left school after his mother was arrested . He appealed to the Court to give
accused 2 a second chance.
[38] Accused 2 has two previous convictions. One for assault in 2004 and she also
pleaded guilty to contravention of s 11 read with sections 1, 2, 50, 59, 60 and 61 of
the Criminal Law (Sexual Offence and Related Matters) Act 32 of 2017 ( “SORMAA”)
during 2018 and was convicted on 21 May 2019 . She was sentenced to 3 years
imprisonment wholly suspended for 5 years on condition that she not be convicted of
any offence under SORMAA during the period of suspension.
Accused 3: personal circumstances
[39] Accused 3 is a 33-year-old male from Cameroon who came to South Africa in
May 2017. At first, he resided with and worked for his uncle in Parow Valley, and
also assisted his uncle at his night club in Long Street, Cape Town and also worked
at a construction company for a week or two. He completed high school and attained
a certificate in building and construction. He completed a three -year apprenticeship
in Cameroon.
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[40] He is married with one minor dependent child. The mother and child live in
Cameroon.
[41] Accused 3 is also a devout and practising Roman Catholic, does not use drugs
and is not affiliated with any gang.
[42] He has no previous convictions.
[43] Accused 3 arrived in South Africa in May 2017 and had lived with accused 1 for
at least a month or longer before his arrest in September 2017. Before moving in, he
also regularly spent time at the house of accused 1. He remained in the rental
premises of accused 1 in Brooklyn until he was arrested during November 2017.
[44] Accused 3 was arrested in November 2017 and has been awaiting trial in
custody since. This is a substantial period . He at some stage applied for bail but
abandoned the application.
Mitigation:
Personal circumstances and rehabilitation:
[45] In mitigation it was argued on behalf of accused 1 and 3 that the following
factors constitute substantial and compelling circumstances to deviate from imposing
the prescribed sentences: their personal circumstances, the period that the y have
been incarcerated in conjunction with the conditions in prison , and the relative ease
with which they would be able to rehabilitate and reintegrate into society.
[46] The personal circumstances of accused 1 do not in my view constitute
substantial and compelling circumstances to deviate from the prescribed sentences.
[47] In respect of accused 2 I take not e that he was relatively young when he came
to South Africa, a nd first lived with his uncle, worked to earn income initially and did
not live and assist accused 1 with his trafficking business for an extended period of
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time. He also has a small child which he has not had contact with since his
incarceration in 2017.
[48] It was submitted on behalf of the accused that they could be rehabilitated even
though they have not admitted to their crimes. This is difficult to understand , as
rehabilitation is not possible without a person accepting responsibility.
[49] I agree that accused 1 and 2 would be able to reintegrate into society with
relative ease due to their religious af filiation and the fact that they do not abuse
substances and would probably be able to find employment.
[50] I was also referred to the matter S v Young 1977 (1) SA 602 (A) at 610 E -H
where it was stated that: “[w]here multiple counts are closely connected or similar in
point of time, nature, seriousness or otherwise, it is sometimes a useful, practical
way of ensuring that the punishment imposed is not unnecessarily duplicated or its
cumulative effect is not too harsh on the accused.”
[51] I agree that the offenses committed by the accused, which involved multiple
counts, in respect of various individuals , to some extent all relate to human
trafficking.
[52] Even though each crime committed against each victim carries a serious and
prescribed sentence in respect of some counts , cumulative sentences in respect of
each complainant would in my view be excessively harsh.
[53] On behalf of accused 2 it was submitted, in summary, that she was also a
victim, that she is the primary caregiver of minor child ren and that her role in the
trafficking activities were minimal.
Period of incarceration and prison conditions:
13
[54] It was submitted on behalf of accused 1 and 3 that the period they had been
incarcerated and the prison conditions at Pollsmoor constitutes substantial and
compelling circumstances to deviate from the minimum sentences prescribed.
[55] To this end accused 1 a nd 3 testified that Pollsmoor is overcrowded with
prisoners not receiving sufficient nutritious food and /or medical attention which
infringes on their basic human rights. I accept , and have considered, that there are
challenges, and that human rights inf ringements may occur. These sentencing
proceedings are, however, not the forum wherein the non -performance of the State
can be addressed and there are various platforms where any alleged human rights
violations in Pollsmoor or other prisons in South Africa can and should be raised.
[56] According to accused 1 he contracted chickenpox and ha s had s kin rashes
whilst incarcerated. Accused 3 reported that he suffers from stress. Neither of them
testified that they personally suffered any human rights violations whilst incarcerated.
They both also appeared to be in good health on the many days they appeared in
Court, which was over a lengthy period.
[57] I agree that the substantial time spent awaiting trial is a factor which the Court
should consider in deciding whether substantial and compelling circumstances exist
to deviate from the prescribed life sentences the accused face.4
Aggravation:
[58] In considering the aggravating factors set out in s 14 of the Human Trafficking
Act, the evidence showed that accused 1 was the “kingpin” of the human trafficking
4 In the matter of GG Moleme v The State (unreported judgment under case number CA 15/2022,
North West Division, Mahikeng) Petersen ADJP with reference to Radebe and Anoth er v S
726/12)[2013] ZASCA 31; 2013 (2) SACR 165 (SCA )(27 March 2023), reiterated that the period of
detention pre-sentencing is but one of the factors that should be taken into account in determin ing
whether the effective period of imprisonment to be imposed is justified as such approach would take
into account the conditions affecting the accused in detention and the reason for a prolonged period in
detention. In para 19 he confirmed that: “It is clear from Radebe that the period in detention is one of
the factors that should be considered in determining whether the effective period of imprisonment to
be imposed is justified: whether it is proportionate to the crime committed.”
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business conducted from his rental home in Brooklyn, Western Cape. He, with the
assistance of accused 2 in respect of the victims from Springbok, lured the victims to
come to Cape Town to work for him with promises of being cared for and looked
after. He was also the person who introduced and caused most of the victims to
became addicted to the drug “rocks”.
[59] The victims were held captive by fear. They not only witnessed , but was
subjected to, vicious and inhumane assaults by accused 1. Detailed accounts of the
physical, emotional and psychological abuse suffered by the victims at the hands of
accused 1 has been set out in the judgment of 24 May 2024 and is not repeated
herein.
[60] [SN] was merely 15 -years old, a chi ld when she was trafficked and assaulted
by accused 1.
[61] I am mindful thereof that accused 1 is a first offender, that the conditions
where the victims were held were reasonable in that there were beds and that they
were given food and basic toiletries. It was not established that the business of
accused 1 formed part of organised crime, though the same names and role players
were repeatedly mentioned in the trial as either living or regularly being at the house
in Brooklyn.
[62] As to the nature of the relatio nship between the victims and accused 1, the
testimonies of the victims from Springbok were that they trusted him because he was
the husband of accused 2. The other victims all testified that he was initially very nice
to them and cared for them and that t hey therefore trusted him. It was established
that most of them had already found themselves in vulnerable positions.
[63] The state of the victims’ mental health was dealt with in the victim impact and
other reports submitted by the state. These reports highlight the severe and long -
lasting detrimental impact the crimes committed against them have had on them .
During their testimonies most of the victims broke down whilst relating to the Court
15
how they were trafficked and abused by accused 1. Thei r hatred , resentment and
fear of accused 1 was visible.
[64] It appears from all these reports that accused 1 made false promises to the
victims that he would protect them , but i nstead, they were held hostage, fed drugs
and assaulted when they tried to break free from the cycle of abuse. Regarding the
impact of the offences committed against [CJ] and [SM], Mr Leo reported , as quoted
verbatim below, as follows:
“C[…] J[…] is ‘n slagoffer in hierdie saak. Sy is ’n volwasse vrou. Sy vind dit
uiters moeilik om oor die gebeure tydens haar aanhouding by die oortreders
te kommunikeer. Sy wil graag die gebeure agter haar sit en aanbeweeg met
haar lewe. Wat sy wel gedurende onderhoudvoering met die proefbeampte
bespreek het kan as volg beskryf word: Die oortreder (Mnr Ayuk) het haar
gevange gehou vir maande. Sy het verskeie pogings aangewend om te
ontsnap maar was sy elke keer aangekeer deur die oortreder en sy trawante.
Die slagoffer was dan met elektrisiese koorde en besemstokke aangerand. Sy
beskyf dat die oortreder haar vorseer het om ‘n swaar emmer met warm water
bo haar kop te balanseer terwyl so op haar hurke sit. Sy het vrees ervaar dat
sy haarself sal brand indien sy nie die water emmer reg balanseer nie. Sy
onthou hoe sy die oortreder gesmee k het om die gru daad te staak maar het
sy te vergeefs gesmeek. Sy erken dat sy tydens die aanhouding en daarna
depressie ervaar het. Sy het erge vrees vir die oortreder (Mnr. Ayuk) ervaar.
Sy verbaliseer ‘n verlange na haar familie ten tye van die aanhoud ing by die
woning. Sy moes seks met vreemde mans het teen haar sin. Die oortreder
sou soms teenwoordig wees ten tye van die seksuele omgang tussen haar en
dese vreemdelinge.
S[…] M[…] is ‘n slagoffer in hierdie saak. Sy is volwasse en huidiglik in
Matjieskloof woonagtig. Die slagoffer ervaar steeds trauma wanneer sy aan
die dade wat sy moes deurstaan dink. Sy vermy enige kommunikasie oor die
tydperk aan huis by oortreder (Mnr. Ayuk). Sy het egter in onderhoudvoering
met die proefbeampte die volgende ervaring gedeel: Sy herroep dat sy
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pogings aangewend het om uit die kloue van die oortreder (Mnr. Ayuk) te
ontsnap. Sy was egter onsuksesvol. Sy herroep oomblikke wanneer sy vir
haar lewe gevrees het en dat die oortreder haar ontelbare kere met elektriese
koorde en besemstokke aangerand het. Sy onthou hoe die oortreder (Mnr.
Ayuk) haar kop onder water gedompel het en sy na asem gesnak het
gedurende hierdie gru daad en geveg het vir haar lewe. Sy word steeds met
vrees gevul wanneer sy aan die grudade dink. Sy onthou dat die oortreder
(Me. Williams-Ayuk) telke kere tot haar redding gekom het deur die houe van
die oortreder (Mnr. Ayuk) af te weer. Die slagoffer verbaliseer dat die
aanrandings minder intens gevoel het wanneer sy onder die invloed van tik
was en dat sy haar vergryp het aan die misbruik van die dwelm ten einde die
tyrany van die oortreder te ontsnap.” 5
[65] Turning to accused 2. When considering the aggravating factors set out in s
14 of the Human Trafficking Act, it appears that the role of accused 2 was to recruit
victims in Springbok to work in the human trafficking business operated by accused
1 in Brooklyn. She was aware that the victims had poor family support, could easily
be influenced and that at least two of the Springbok victims wer e already using
5 My translation: [CJ] is a victim in this matter. She is a major woman. She found it difficult to
communicate about the incidents which occurred during her detention by the perpetrators. She wants
to put the events b ehind her. What she did discuss with the probation officer can be described as
follows: The perpetrator (Mr Ayuk / accused 1) held her prisoner for months. Shy made several
attempts to escape but was found and brought back by the perpetrator and his helpers. The victim
was then assaulted with electrical cords and broomsticks. She described that the perpetrator would
force her to balance a bucket of water on her head whilst sitting on her h aunches. She feared that she
would burn herself if she did not balanc e the bucket correctly. She remembers how she begged the
perpetrator to stop with his gruesome deeds, but it was in vain. She admitted that she suffered from
depression during and after her detention. She experienced severe fear of the perpetrator (Mr Ayuk).
She verbalised that she longed for her family whilst being detained at the home of the perpetrator.
She had to have sex with strange men against her will. The perpetrator would sometimes be present
whilst she had sexual intercourse with these strangers.
[SM] is a victim in this case. She is a major and currently living in Matjieskloof. The victim still suffers
trauma when she must think about the deeds she had to withstand. Sy avoids any communication
about the period she lived in the house of the perpe trator (Mr Ayuk). She shared during the inter view
with the probation officer the following: She recalls that she attempted to escape the claws of the
perpetrator (Mr Ayuk). Her attempts were unsuccessful. She recalls mom ents that she feared for her
life and that the perpetrator had assaulted her with electrical cords and broomsticks on innumerable
occasions. She remembe rs that t he perpetrator (Mr Ayuk) held her head under water and how she
gasped for air during these gruesome deeds and ha d she fight for her life. She still becomes fearful
when she thinks about these gruesome deeds. She remembers that the perpetrator (M s. Willimas -
Ayuk/accused 2) came to her rescue on many occasions by diverting the strokes of the perpetrator
(Mr Ayuk). The victim verbalised that the assaults felt less intense when she was under the influence
of tik and that she used drugs in an attempt to escape the tyranny of the perpetrator.
17
drugs. She testified that the victims looked up to her as she had previously worked
as a sex worker in Cape Town. She was also older than them and they trusted her.
Given her evidence during the sentencing proceedings, she knew exactly what
accused 1 was subjecting the victims to and that he used physical and emotional
abuse to hold them captive. She was aware, given his conduct towards her, that he
would treat them the same way. She also testified that she knew accused 1 was
selling drugs, that he introduced her to smoking “rocks” and that they extended his
business when she moved in as she knew prostitution. According to her their
businesses went “hand-in-hand”. She also stated that she worked for accused 1 as a
prostitute and that he contr olled everything about her life, had no freedom and lived
in fear of his assaults.
[66] As with accused 1 there was no evidence that the trafficking business formed
part of organised crime.
[67] When considering the factors listed in s 14 of the Human Trafficking Act in
respect of accused 3, it appears from the evidence that his role was that of the
enforcer. He assisted accused 1 with the transportation of the victims, sold drugs to
them and cooked f or them. If accused 1 was not there he took care of the business
operations. There was no evidence that he caused any of the victims to become
addicted to “rocks” or that they suffered any assaults at his hands. He was however
aware and present when they w ere assaulted and did nothing whilst living with
accused 1 on the proceeds of prostitution . It does not appear that he had any
particular relationship with the victims which is understandable, given his role in the
business operated from the home of accused 1.
[68] Accused 3 persisted that he was innocent, knew nothing about the crimes he
was convicted of and that the charges against him w ere fabricated by the police and
that the witnesses were influenced by the police to make false accusations against
him.
[69] The physical and psychological effects on the victims due to being held captive
is contained in the victim impact reports.
18
Best interests of the minor children:
[70] It was submitted on behalf of accused 2 that I should deviate from the
minimum sentences applicable to her based on the best interest s of her children.
This argument was premised on s 28 of the Constitution of the Republic of South
Africa, 1996, which provides that a 'child's best interests are of paramount
importance in every matter concerning the child'.
[71] In S v M 2009 (2) SACR 477 (CC) Sachs J explained this enquiry as follows:
“When considering whether to impose imprisonment on the primary caregiver
of young children, did the courts below pay sufficient attention to the
constitutional provision that in all matters concerning children, the children's
interests shall be paramount?' In the majority judgment the duties of a court
when sentencing a primary caregiver of minor children is set out and a
primary caregiver is defined as 'a person with whom the child lives and who
performs everyday tasks like ensuring that the child is fed and looked after
and attends school regularly”.
[72] I was also referred to and have considered the matter of S v S (Centr e for
Child Law as Amicus Curiae) 2011 (2) SACR 88 CC where it was held by Cameron J
in the majority judgement that:
“62. S v M has revolutionized sentencing in cases where the person
convicted is the primary caregiver of young children. It has reasserted the
central role of the interests of the children as independent consideration in the
sentencing process. Yet it would be wrong to apply S v M in cases that lie
beyond its ambit. The mother in S v M was a single parent and was almost
exclusively burdened with the care of her children. There was no other parent
who could without disruption step in during her absence to nurture the
children and provide the care they need and to which they are constitutionally
entitled..” and at “63. That is not the case here … A non- custodial sentence
19
is therefore not necessary to ensure their nurturing. And a custodial sentence
will not inappropriately compromise the children’s best interests.”
[73] In the matter of S v Piater 2013 (2) SACR 254 (GNP), it was held by Makgoka
J, with regard to the best interests of minor children, that:
“[21] In S v M (Centre for Child Law as Amicus Curiae), (footnotes
omitted), the majority of the Constitutional Court set out the duties of a court
sentencing a primary caregiver of minor children. In para 28 the court defined
a primary caregiver as 'the person with whom the child lives and who
performs everyday tasks like ensuring that the child is fed and looked after
and that the child attends school regularly'. The court held that focused and
informed attention needed to be given to the interests of the children at
appropriate moments in the sentenc ing process. What is expected of the
sentencing court is to give sufficient independent and informed attention, as
required by s 28(2) and s 28(1)(b) of the Constitution (footnote omitted), to the
impact on the children of sending their primary caregiver t o prison. The
objective is to ensure that the sentencing court is in a position adequately to
balance all the varied interests involved, including those of the children placed
at risk.”
[74] He summarised in para [23] that s 28(2), read with s 28(1) (b)of the
Constitution, imposes four responsibilities on a sentencing court when a custodial
sentence for a primary caregiver is in issue, namely to establish whether there will be
an impact on the child; to consider independently the child's best interests ; to attach
appropriate weight to the child's best interests; and , to ensure that the child will be
taken care of if the primary caregiver is sent to prison.
[73] It was disputed by the State that accused 2 was the children’s primary
caregiver of her minor children. I disagree. It was not disputed that the children lived
with accused 2 after 2012 when she moved to Springbok until she was arrested in
2018. It was as a result of her arrest that the children were placed at a Child Care
Facility where they still live.
20
[74] However, from the reports submitted to court it appears that the children are
doing well, are properly care d for and are not at risk should accused 2 be further
incarcerated. I share the view of Ms Van der Westhuizen that the two younger
children will benefit from having contact with accused 2 whilst being in a secure and
safe environment and that she should be placed in a facility close to the children in
order to maintain contact. Her recommendations were that regular telephonic contact
between the children and accused 2 take place at this stage; that their current
placement at Jog ébed Foster Home remains unchanged for a further period while
the possible movement of the children closer to accused 2 is investigated; that
accused 2 uses the opportunity to obtain a stable and safe environment and income
and that accused 2 must work with th e responsible social workers in order to ensure
re-unification with the children in future.
[75] Accused 2 has shown some degree of remorse for her deeds during the
sentencing proceedings and ha d over the years, in her way, cared for and loved her
children whilst living a troubled and at times a horrific life since her early years . It is
not uncommon for victims of abuse to become perpetrators of the very same abuses
they have suffered, and it appears that accused 2 had unfortunately not only for her
own benefit, but also for the benefit of accused 1, trafficked and abused vulnerable
women known to her.
The interests of society:
[76] Our society is currently experiencing high levels of violent crime, especially
violent crimes against women and children. In S v Reay 1987(1) SA 873(A) at 877C
it was stated in this regard that: “The interests of society demand that offenders of
serious crime be deterrently punished, hence the deterrent objective of sentencing
as an element which seriously need to be considered in t he interest of society. If
offenders are punished too lightly for serious offences, the respect which society has
for law and order, would be undermined” . Similarly and in S v Du Toit 1979(3) SA
846 (A) it was emphasised that serious crimes require that th e objectives of
21
retribution and deterrence should weigh more than the objective of rehabilitation of
the offender.
[77] The gravity of the offences o f which the accused has been convicted of cannot
be overemphasised. I agree with the submission by the State that in cases like these
society demands that the Court must protect and enforce stringent sentences and
that the interest of society and the seriousness of the offence s must weigh heavier
than the interest of the accused.
[78] It was recognised in S v Schwartz 2004 (2) SACR 370 SCA at 378 c -d that
serious crimes “ Induce a sense of outrage in society and will usually require that
retribution and deterrence should come to the fore and that rehabilitation of the
offender will consequently play a relatively smaller role.”
[79] I was also referred to the matter of S v Msimanga and Another 2005 (1) SACR
377 (OPD) 6 where it was held that: “The reason for the existence of the criminal
justice system is to serve the interests of the public and sentencing, as an integral
part of that system, has the same raison d’etre. Violent conduct in any form can no
longer be tolerated, and courts, by impos ing heavier sentences, convey the
message, on the one hand, to the prospective criminals that such conduct is
unacceptable and, on the other hand, to the public that the courts take seriously the
restoration and maintenance of safe living conditions. Deter rence is the over-arching
and general purpose of punishment.” and “Since no civilized community should have
to tolerate barbaric conduct, in cases of crime in particular the deterrence and
retribution aims of punishment are to be preferred over those of pr evention and
rehabilitation which in such cases play a subordinate role.” I agree.
Seriousness of the offences:
6 In S v Msimanga en ‘n ander 2005(1) SACR 377 (O) at paras [9] and [10] the original Afrikaans text
is set out and has been correctly translated.
22
[80] The crimes committed by the accused were horrendous and the enormity of it
can hardly be over emphasized.
[81] Trafficking in Persons or Human Trafficking as it is commonly known is a
heinous crime to its very core. It strips the victim(s) of their dignity as they are treated
like a commodity , a slave . The Palermo Protocol stipulates that state parties must
adopt or strengthen legislative or other measures to discourage the demand that
fosters all forms of exploitation of persons especially women and children. South
Africa is a signatory to the Palermo Protocol.
[82] In an effort to curb trafficking in persons , some provinces such as the Western
Cape have formed provincial human trafficking task teams and a Rapid Response
Team comprising of representatives from different provincial departments inter alia:
Social Development, Education, Health, the SAPS, Justice and civil society
stakeholders in the province. Such forums coordinate prevention, prosecution, and
protection and partnership interventions through an inter -sectoral provincial action
plan, to ensur e outreach and awareness to instances of trafficking, and support for
trafficked victims.
[83] In addition to imposing stringent penalties, the courts also pointed out other
factors, such as gross human rights violations which underpin s the seriousness and
nature of th is crime. In the matter of S v Obi (case number CC 40/2018 GP at para
8), Ranchod J held:
‘It (human trafficking) violates basic human rights and is the cause of
immeasurable trauma to victims, their families and the communities in which
they live.’
[84] The seriousness of the offence of trafficking in persons for sexual exploitation
has been affirmed in many cases.7
7 See S v Dos Santos 2018 (1) SACR 20 GP where the accused was sentenced to life; S v Mabuza
2018 (2) SACR 54 GP; S v Jezile 2016 (2) SACR 62 WCC ; S v Obono 2022 JDR 1015 (GP ); S v
23
Evaluation and conclusion:
[85] The complainants were defenseless victims who were subjected to abuse of
the worst form. They were treated like objects and stripped of their dignity as human
beings. They were treated like commodities by the accused to feed their greed for
money and power.
[86] Having regard to all the facts placed before this Court i n respect of accused 1, I
can find no substantiating or compelling reasons to deviate from the prescribe d
sentences. By ordering his sentences to run concurrently , the period for which he
has been awaiting trial, is recognized and taken into account.
[87] On the conviction in respect of dealing in drugs I point out that after rec ruiting
the victims by dec eptive means , on e of the first things accused 1 did, was to get
them to smoke rocks and make them depend ent on it. This was part and parcel of
his tactics to manipulate, coerce and intimidate them to do his bidding. The effect the
rocks had on the victims were attested to by them and commonly referred to as
“wake-up”. I reject the testimony of accused 1 in respect of the reason why he
allegedly sold the drugs in respect of count 40.
[88] In respect of accuse d 2, I find that substantial and compelling circumstances
exit given her personal circumstances and her future relationship with her minor
children, two of them still being relatively young. Long term imprisonment of which a
portion is suspended will in my view be in accordance with the Zinn triad.
[89] In respect of accused 3, I also find that substantial and compelling
circumstances exist given his personal circumstances , the substantial period spent
as an awaiting trial prisoner and his role in the trafficking operations. The vict ims,
contrary to their reactions to and fear of accused 1, did not display the same
Okekeke and Another 2023 ZAGPPHC 110 dated 23 February 2023 and S v ZB2023 (1) SACR 298
(WCC).
24
sentiments towards accused 3. Long term imprisonment of which a period is
suspended will therefore in my view be proportionate and in accordance with the
Zinn triad.
[90] Having considered all the factors, the following sentences are imposed:
In respect of accused 1:
1. On counts 1, 7, 8, 15, 28 and 34 [Human Trafficking] life imprisonment on
each of these counts.
2. On c ounts 3,10,17,30 and 36 [Using the services of a victim of human
trafficking] 15 years imprisonment on each of these counts.
3. On counts 4, 11, 18, 31 and 37 [Living off the earning of prostitution] 5
years of imprisonment on each of these counts.
4. On counts 5, 12, 19, 21 and 38 [Kidnapping] 10 years imprisonment on
each of these counts.
5. On counts 6, 13, 20, and 39 [Assault with the intention to grievous bodily
harm] 7 years imprisonment on each of these counts.
6. On count 33 [Assault with the intention to grievous bodily harm of a
minor] 10 years imprisonment.
7. On c ount 14 [Possession, Destruction, Confiscation, Concealment of or
tampering with documents] 10 years imprisonment.
8. On count 40 [Dealing in drugs] 5 years imprisonment.
9. All the above sentences shall run concurrently in terms of section 280(2)
of the CPA with counts 1, 7, 8, 15, 28 and 34.
25
In respect of accused 2:
10. On counts 1, 7 and 8 [Human Trafficking] 20 years imprisonment on each
count of which 5 years is suspended on condition that accused 2 does
not contravene the Human Tra fficking Act or any section of SORMAA
during the period of suspension.
11. The above sentences shall run con currently in terms of section 280(2) of
the CPA.
In respect of accused 3:
12. On counts 15, 28 and 34 [ Human Trafficking] 20 years imprisonment on
each count of which 5 years is suspended on condition that accused 3
does not contravene the Human Trafficking Act or any section of
SORMAA.
13. On c ounts 17, 3 0 and 3 6 [Using the services of a victim of human
trafficking] 15 years imprisonment on each count.
14. On counts 18, 31 and 37 [Living on the earnings of prostitution] 5 years
imprisonment on each count.
15. On c ounts 19, 32 and 38 [Kidnapping] 10 years imprisonment on each
count.
16. All the sentences shall run concurrently in terms of s 280 (2) of the CPA
with counts 15, 28 and 34.
17. All the accused are declared unfit to possess a firearm in terms of s
103(1) of the Firearms Control Act 60 of 2000.
26
______________________________
A De Wet
Acting Judge of the High Court
Dates of Hearing: 5, 6, 25, 26 and 27 September 2024
11 October 2024
Date of Judgment: 15 November 2024
On behalf of the State: Adv M Marshall and Adv S Buffikins
Office of the Director of Public
Prosecutions Western Cape
Email: mmarshall@npa.gov.za
On behalf of accused 1 and 3: Adv M Sibda
Instructed by Legal Aid South Africa
Email: bashiersibda@gmail.com
On behalf of accused 2: Adv S Kuun
Instructed by Legal Aid South Africa
Email: susannak@legal-aid.co.za