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The United Nations defines human trafficking as the transfer, transportation, harboring, recruitment, or receipt of people through deception, fraud, or force and to exploit them for profit. 

In South Africa, The Prevention and Combating of Trafficking Persons Act 7 of 2013 is the primary piece of legislation directly dealing with this form of organized crime in the Republic of South Africa. Specifically, in the case of children, the Children’s Act 38 of 2005 is further relevant in criminalizing and seeking to combat the trafficking of persons under the age of 18.

Human Trafficking in Context: The Joslin Smith Case

A recent example of the realities of human trafficking in South Africa was brought to light with the story of young Joslin Smith. The 6-year-old girl was reported missing on 19 February 2024 after allegedly being left in the care of her mother’s boyfriend. Evidence, since gathered, appeared to point in the direction of Joslin’s mother, Kelly Smith, her boyfriend (Jacquen Appolis), and two others (Steveno van Rhyn and Lourentia Lombaard).

All were subsequently arrested and charged with kidnapping and human trafficking. The matter is currently pending before the Vredenburg Magistrates Court and all the accused, including Joslyn’s mother are in custody pending their next Court appearance. The accused have all abandoned their right to apply to be released on bail pending the finalization of the matter. 

The offenses with which the accused are charged fall within the ambit of Schedule 6 of Act 51 of 1977.  In layman’s terms, schedule 6 is a compilation of the most serious crimes that a person can commit and normally carries minimum prison sentences of more than 15 years. 

Naturally, an accused charged with a Schedule 6 offence, in terms of Section 60 (11) (b) of Act 51 of 1977, bears the onus of showing exceptional circumstances in the interests of justice which warrant the release of such an accused on bail. This standard of proof is a high threshold to reach in that an accused person must demonstrate to the honorable Court that there will be overwhelming prejudice to the accused and third parties should the accused be granted bail. 

During their respective court appearances, however, the accused all abandoned their bail applications which can be construed as an indication that no exceptional circumstances exist for the accused persons to rely upon to be released on bail. The result of doing so is that the co-accused will remain in custody until the next court appearance. In this matter, the next court appearance is set for May 2024. 

Article written by Faure & Faure Inc litigation specialist Benedict Asia and candidate attorney Sarah Patel.

For more information, contact 021 871 1200 or email contact@faurefaure.co.za.

Faure & Faure Inc. – Your partner in Law in the Paarl and Boland Area.

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