A KwaZulu-Natal woman accused of pretending to be a foreign national’s mother to help him obtain fraudulent South African documentation has had her conviction and sentence set aside.
This follows the High Court in Pietermaritzburg finding that she had been wrongly convicted of an offence that applies only to public servants, despite not being employed as one.
Busisiwe Ndabezitha was convicted on 4 September 2024 for contravening section 49(5) of the Immigration Act after allegedly helping a foreign national, Jerry Chiwambo, attempt to obtain a South African identity document by falsely claiming to be his mother at the Department of Home Affairs.
The conviction was overturned on 23 January 2026 following a special review by Justices Robin Mossop and Murray Pitman, who found that the fundamental requirement for the charge had never been met.
Mossop noted in his judgment that “this review does not relate to accused one but relates only to accused two.”
Attempted fraud unravels
The two accused had allegedly acted together in trying to ID documentation for Chiwambo, a foreigner.
Ndabezitha, a South African citizen, had falsely represented to the department “that she was accused one’s mother in an attempt to secure the identity document for him,” according to the court judgment.
However, the plan quickly fell apart. “She, however, soon crumbled under questioning and the swindle was uncovered,” Mossop wrote.
Both individuals were arrested and charged on multiple counts.
Chiwambo faced three counts, including fraud, contravention of the Refugees Act, and violation of the Immigration Act.
Ndabezitha also faced three charges: fraud, contravention of the Identification Act, and breach of the Immigration Act.
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Critical element missing from guilty plea
On 1 October 2024, the trials were separated and Ndabezitha proceeded alone. The fraud and Identification Act charges against her were withdrawn, leaving only the Immigration Act violation.
Three days later, represented by Legal Aid South Africa, she pleaded guilty to contravening section 49(5) of the Immigration Act.
“A written plea in manuscript was submitted by accused two’s legal representative and was accepted by the State and she was duly convicted,” the judgment stated.
On 4 December 2024, she received a suspended sentence of a R6 000 fine or six months imprisonment.
The problem with the conviction emerged during a routine review of decided cases at the Durban Magistrate’s Court.
A committee appointed for this purpose identified what Mossop described as “so obvious that it is remarkable that it had not been picked up at any prior stage by the prosecution or by the magistrate who presided over the accused two’s hearing.”
Section 49(5) of the Immigration Act specifically targets public servants who provide false documentation to illegal foreigners or facilitate their concealment of identity.
Mossop explained that the admission that she was a civil servant was absent from Ndabezitha’s guilty plea. However, “that allegation formed the essence around which the charge against accused two coalesced.”
The judgment stated bluntly: “To be convicted as she was, she had to be a civil servant. The fact is that she was not a civil servant. It is not clear from the papers whether she was even employed.”
Magistrate offers no real explanation
Because the sentence fell outside the scope of automatic review procedures, the matter was referred to the High Court under section 304(4) of the Criminal Procedure Act.
The act allows intervention when proceedings were not in accordance with justice.
The magistrate who handled the case had left the Durban Magistrate’s Court, but was eventually located and asked to explain what happened.
However, her response provided little insight into how such a fundamental error occurred.
“I respectfully concede that I erroneously convicted the accused 2 of contravening the provisions of Section 49 of the Immigration Act 13 of 2002,” the magistrate stated.
Mossop expressed dissatisfaction with this response. He emphasised the need for transparency.
“When magistrates are called upon to offer explanations for their conduct, they must be frank and candid with this court,” he stated.
Simply stating the obvious serves no purpose, he added. “What is required is sufficient particularity as to why the error occurred so that potentially steps could be taken to ensure that others do not make the same mistake.”
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Alternative charge rejected
A magistrate who identified the problem suggested the court either set aside the proceedings or substitute the conviction with an offence under section 42 of the Immigration Act, which deals with aiding illegal foreigners in various ways, including providing accommodation, employment assistance, or helping with business operations.
However, Mossop rejected this proposal. “It would appear to me that the difficulty with the conviction of accused two would simply be compounded if the alternative proposal was applied, as she does not appear to be guilty of contravening any of the provisions of s 42,” he said.
Instead, he determined “it would be safer to simply set aside the conviction and sentence and allow the Director of Public Prosecutions to decide whether to reinstate the charges.”
The court ordered that both Ndabezitha’s conviction on 4 September 2024 and her sentence on 4 December 2024 be set aside, with Pitman agreeing.
Mossop reiterated the fundamental problem: “The gravamen of the charge that accused two faced required her to be a civil servant. She was not, and so she ought never to have been convicted as she was.”
“The conviction cannot accordingly be permitted to stand,” he concluded.
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