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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A304/2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE
SIGNATURE
In the matter between:
CHINESI JUSTICE OBASI Appellant
and
THE STATE Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines. The date and for hand-down is deemed to be 25 August 2025.
Flynotes: Appeal against conviction and sentence. Failure to testify. Factual
findings of the trial Court cannot be interfered with. Wording in the section to
be given their ordinary grammatical meaning taking into account the context
and purpose of the section. Evidence before a trial Court established all the
elements of the statutory offences. Conviction confirmed. Sentence not to be
interfered with since there was no failure of justice. Held: (1) The appeal
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against conviction and sentence dismissed. Held: (2) Conviction and sentence
confirmed.
JUDGMENT
CORAM: MOSHOANA J (LENYAI J AND LEDWABA AJ CONCURRING)
Introduction
[1] Human trafficking exists because people are vulnerable to exploitation as a
result of poverty, lack of education and desperation. It is a modern -day form of
slavery. Often times, human trafficking is motivated by money. Victims of human
trafficking are most of the time abused, confused and disorientated. People are
trafficked for sex, labour and other related reasons.
[2] In order to deal with the menace of human trafficking , in 2013 the South African
legislature passed the Prevention & Combating of Trafficking in Persons Act
(Trafficking Act)1 into law. The preamble of the Trafficking Act amongst other things
states that “ concerned by the increase of trafficking in persons, especially women
and children, and the role played by the organised criminal networks in trafficking of
persons globally” the Parliament passed the Act.
[3] The above said, this is an appeal which reached this Court after leave to appeal
was granted to this Court by the Honourable Justices Ponnan JA and Siwendu
AJA of the Supreme Court of Appeals. The appeal is against the conviction and
sentences imposed by the erudite Madam Justice Tolmay . The appeal is
opposed by the State. The appellant, Mr Chinesi Justice Obasi was on 14
December 2017 convicted on three counts. On 18 September 2018, he was
sentenced to 10 years imprisonment in respect of counts 1 and 2 and the first
1 Act 7 of 2013 as amended.
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two years on count 1 are to run concurrently with count 2. In respect of count 9
he was sentenced to 1 year imprisonment also to run concurrently with counts
1 and 2, resulting in an effective term of imprisonment of 18 years.
Background facts and evidence
[4] The appellant was arraigned together with two other accused persons. He was
arraigned as accused number 3. In count 1, the State alleged that on or about the
period 1 April 2016 up to and including 30 September 2016 and at or near Pretoria,
he did unlawfully and intentionally harbour or lease another pers on, to wit B[...] P[...]
M[...] (B[...]) within the borders of the Republic of South Africa , by means of threat or
use of force or other forms of coercion and the abuse of vulnerability, aimed at B[...]
P[...] M[...]. In count 2, the State alleged that on or about the period 1 May 2016 up to
and including 1 September 2016 and at or near Pretoria , the appellant did unlawfully
and intentionally harbour or lease another person, to wit P[...] T[...] M[...] (P[...])
within the borders of the Republic of South Africa, by means of threat or use of force
or other forms of coercion and the abuse of vulnerability, aimed at P[...] T[...] M[...].
[5] In count 9, the State alleged that the appellant upon or about the period 1 -30
March 2005 and at or near Pretoria did knowingly and intentionally, and for the
purpose of obtaining residence in the Republic of South Africa, commit a fraudulent
act or make a false representation by conduct, statement or otherwise , to wit,
married Jaqueline Madisha Obasi (Jaqueline), a South African citizen, whereas in
fact they did not live together as husband and wife and that the appellant married
Jaqueline Madisha Obasi for the sole purpose of obtaining permanent residency in
the Republic of South Africa.
[6] In December 2015, B[...] moved to Sunnyside, Pretoria due to family issues.
She had discovered that the man she thought was her biological father was not. She
She had discovered that the man she thought was her biological father was not. She
met with a Nigerian man and started a love relationship with him. Owing to the
pressures of earning an income she became involved in prostitution . She was
recruited into prostitution by the Nigerian man she fell in love with. The money she
earned out of pros titution was paid over to this Nigerian man. After a while, the
relationship with the Nigerian man ended and she return ed to her parental home.
She did not stay for long with her parents. She returned to Sunnyside. Unfortunately,
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the Nigerian man had a new girlfriend. Since she was unemployed and had no place
to stay, the Nigerian man arranged for her to stay with the appellant . The Nigerian
man transported her to a flat number 4[…] at J[...] C[...].
[7] P[...] struck a friendship with the appellant’s girlfriend around 2009. In May
2016 she came to Pretoria looking for the appellant and his girlfriend. She met with
B[...] who directed her to the appellant. The appellant ordered B[...] and P[...] (the
duo) to prostitute themselves so as to earn money for the board and lodging as well
as drugs he supplied them with. The appellant monitored their movements at all
times. He constantly telephoned them . The appellant also handed them over to his
co-accused, who treated them the same way as the appellant . The duo was
harboured at 4[…] J[...] C[...] and also entertained clients who came to buy and use
drugs there when they worked as prostitutes. The appellant and his co-accused, as a
means to keep the duo vulnerable and dependent on them provided them with
drugs. They were not allowed to go shopping alone , go to the hair salon alone. They
were not permitted to leave the flat for any other reason other than them working as
prostitutes.
[8] The appellant in March 2005 married Jaqueline. They did not live together as a
husband and wife. As the State alleged, he married Jaqueline for the sole purpose of
obtaining permanent residency in the Republic of South Africa. In due course, the
appellant and his co -accused were arres ted. Jointly they faced 9 counts. The State
led the evidence of the duo and other witnesses. The appellant opted not to testify in
his defence. After the trial, the appellant was convicted and sentenced as indicated
above. Before this Court, he is challenging both his conviction and sentences.
Grounds of appeal
[9] In the notice of appeal, the appellant raised the point of lack of jurisdiction of
the trial Court . This point was jettisoned in the heads of argument submitted on
the trial Court . This point was jettisoned in the heads of argument submitted on
behalf of the appellant and was not argued before us. Additionally, a ground of failure
to call further witnesses by the State was raised and e qually jettisoned. The
appellant stated that the trial Court erred in that it did not consider properly or at all
the evidence of the defence. He criticised the approach adopted by the trial Court in
assessing the evidence of the witnesses. Regarding sentences imposed , it was
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contended that the sentences were shockingly inappropriate and without justification.
The sentences overlooked the personal circumstances of the appellant.
Analysis
[10] As an opening gambit, with regard to conviction, the evidence of the State
stood uncontroverted . This Court fails to appreciate a ground that the trial Court
failed to properly consider the evidence of the defence. The question is, which
evidence, since the appellant failed to testify. Versions put during cross -examination
remains versions and do not transmute into evidence until they are repeated under
oath. In Osman and Another v Attorney -General, Transvaal (Osman)2, the
Constitutional Court, with sufficient perspicacity expressed itself in the following
manner:
“Our legal system is an adver sarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to testify does not
relieve the prosecution of its duty to prove guilt beyond reasonable doubt . An
accused, however, always runs the risk that, absent any rebuttal, the
prosecution’s case may be sufficient to prove the elements of the offence . The
fact that an accused has to make such an election is not a breach of the right to
silence. If the right to silence were to be so interpreted, it would destroy the
fundamental nature of our adversarial system of criminal justice.”
[11] In following the similar approach, the Constitutional Court in S v Boesak
(Boesak)3 had the following to say:
“[25] Similarly, if in the course of the trial there is evidence that a document
was written by the accused, and if the accused fails to challenge that
evidence, or raise forgery as an issue, a court may be entitled to hold that in
the absence of testimony from the accused the evidence is sufficient to prove
that the accused was the author of the document. That is what the SCA did in
that the accused was the author of the document. That is what the SCA did in
the present case. It analysed the evidence it considered to be relevant to this
2 1998 (11) BCLR 1362(CC).
3 2001 (1) BCLR 36 (CC).
6
issue and came to the conclusion that in the absence of a challenge or
evidence to the contrary there was sufficient proof that the letter had been
written by Dr Boesak.”
[12] The trial Court in applying the principle in Boesak concluded thus:
“[88] I will as a result evaluate the evidence in totality in order to determine
whether the re is sufficient evidence to convict the accused on the separate
charges.”
[13] The trial Court indeed proceeded to an alyse the evidence of the duo and
reached a conclusion that the duo was harboured by the appellant . The evidence
analysed showed that they were exploited . Their evidence created a background of
the typical relationship between a trafficker and a victim . Before us , attorney for the
appellant, Mr Moldenhauer, forcefully argued that as required by section 4(1),
harbouring was not proven by the State as such the appellant was wrongly convicted
of the statutory offence contemplated in section 4(1) of the Trafficking Act. Mr
Moldenhauer was critical of the approach taken by the trial Court. The trial Court had
said:
“[96] … The word harbour is not defined in the Act; therefore, I resorted to
the Oxford Dictionary where the word is inter alia defined as follows:
“1 … occupy, shelter or lodging. Latterly especially for concealment”
[97] The word harbour seems to suggest an element of concealmen t, which
will fit into the specific circumstances under which the women were given
shelter.
[98] They were given a home, where they could live… They were not
allowed to leave the flat if and when they would do . One can safely also
assume that for the aforesaid reasons they were “harboured” as defined by
the Act.”
[14] This Court unfortunately does not agree with the criticism levelled by Mr
Moldenhauer. It is settled law that a word or phrase is to be given its ordinary
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meaning unless it is defined in the statute where it is located 4. It is also rested law
that interpretation involves a n exercise of consideration of text, context and
purpose5. Mr Moldenhauer referred us to the judgment o f S v Habib (Habib)6. The
learned Acting Judge C oertse sought to interpret se ction 4(1). In congruent with the
trial Court, the learned AJ confirmed that none of the words used in section 4(1) were
defined. The elements of the statutory offence of trafficking as set out in section 4(1)
of the Trafficking Act, are:
(a) By doing any of the following ; d elivers, recruits, transports, transfers,
harbours, sells, exchanges, leases, or receives;
(b) Another person within or across the borders of the Republic;
(c) By means of any of the following manners;
• A threat of harm;
• The threat or use of force or other forms of coercion;
• The abuse of vulnerability;
• Fraud;
• Deception;
• Abduction;
• Kidnapping;
• The abuse of power7
[15] If harbouring takes place by means of for instance, threat of harm ; use of force
or other forms of coercion ; abuse of vulnerability ; or abuse of power, the statutory
offence has been established . The undisputed evidence of assault of the duo
establishes threat of harm and use of force. Abuse of vulnerability is defined in
section 1 of the Trafficking Act. Amongst the vulnerabilities lay (a) addiction to the
use of any dependen ce-producing substance; (b) social circumstances; and ( c)
economic circumstances. It is clear from the evidence of the duo that the appellant
4 See Independent Institute of Education (Pty) Limited v Kwazulu-Natal Law Society and Others
[2019] ZACC 47 (11 December 2019).
5 See University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (8) BCLR
807 (CC).
6 (SS50/2023) [2025] ZAGPJHC 87 (27 January 2025).
7 Other manners in (i) and (j) were omitted.
8
had abused the power he had over the duo. This Court agrees with the decision of S
v A yuk (Ayuk)8 regarding the definition of the phrases abuse of power and
vulnerability.
[16] Given the uncontested evidence of the duo, which was corroborated by others,
this Court is unable to fault the factual conclusions reached by the trial Court. A Court
of appeal must be slow to interfere with factual conclusions reached by the trial
Court. Accordingly, the appellant was correctly convicted of counts 1 and 2. Turning
to count 9. Section 49(14) of the Immigration Act9 provides amongst others that
commission of fraudulent act or making of false representation amounts to an
offence. The evidence of the state suggested that the appellant and Jaqueline were
not living as husband and wife. Mr Moldenhauer submitted that the appellant and
Jaqueline had a good faith spousal relationship contemplated in section 26 of the
Immigration Act. This Court disagrees. The fact that the appellant and his wife did not
live together can only suggest that their marriage was for the purposes of gaining
benefits under the Immigration Act. Such amounts to fraud or misrepresentation .
This Court agrees with the conclusions reached in Mahmood v Director -General
Department of Home Affairs (Mahmood)10 regarding the definition of the phrase good
spousal relationship.
[17] Accordingly, the appellant was correctly convicted with count 9. For reasons
outlined above, the appellant’s appeal on conviction falls to be dismissed. I now
briefly turn to the issue of sentence.
[18] When it comes to sentence unless a failure of justice is demonstrated, a Court
of appeal is not entitled to interfere 11. The trial Court deemed it appropriate that in
order to avoid a double conviction , and having found the appellant guilty of counts 1
and 2, the appellant should not be found guilty of count 5 separately, despite his
admission of the elements of the offence. Before us, the appellant contended that he
admission of the elements of the offence. Before us, the appellant contended that he
8 2024 (2) SACR 609 (WCC).
9 Act 13 of 2002 as amended.
10 Case (22394/2012) dated 8 May 2013 (WCC)
11 See S v Bogaards 2013 (1) SACR 1 (CC).
9
was only guilty of count 5 and the appropriate sentence would be an imprisonment
period not exceeding 3 years with an option of a fine . This Court declines an
invitation to doubly convict the appellant. The powers of this Court are circumscribed
by section 19 of the Superior Court s Act.12 Since there is no double conviction, there
is nothing for the appellant to appeal. There is no cross-appeal by the State.
Conclusions
[19] As indicated above, the appellant was correctly convicted of counts 1, 2 and 9.
His appeal against such convictions falls to be dismissed . Regarding the sentence
imposed, the trial Court found substantial and compelling circumstances and
deviated from the prescribed life imprisonment sentence. An appeal C ourt may not
interfere unless it is clear that the choice the trial Court preferred is at odds with the
law.13 There are no reasons advanced to permit this Court to interfere with the
sentence imposed by the trial Court . Regarding the double conviction, this Court
simply declines an invitation of the appellant.
[20] For all the above reasons, I propose to make the following order:
1. The appeal against conviction and sentence is dismissed.
2. The conviction and sentences are confirmed.
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
M D LENYAI J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
12 Act 10 of 2013.
13 Florence v Government of the Republic of South Africa 2014(6) SA 456(CC) at para 113
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(I agree and it is so ordered)
LPG LEDWABA AJ
ACTING JUDGE OF THE HIGH
COURT GAUTENG DIVISION,
PRETORIA
(I agree and it is so ordered)
APPEARANCES:
For the Appellant: HW Moldenhauer
Instructed by: Moldenhauer Attorneys, Wonderboom.
For the State: A Roos
Instructed by: NDPP
Date of the hearing: 18 August 2025
Date of judgment: 25 August 2025