The State v Collen Dlamini

The accused was a human courier who transported people to South Africa. On 11 May 2010, two complainants aged 15 and 17 years ran away from their parents' homes and voluntarily went to stay with the accused pending transportation to South Africa. The accused took the juveniles to South Africa using a cross-border courier to smuggle them across. The accused did not pay the courier for services rendered, resulting in the girls being detained in South Africa pending payment. When payment was not forthcoming, the courier smuggled the girls back to Zimbabwe. The girls went with the accused willingly and their parents/guardians did not agree to relinquish control over the minors. During trial, after state witnesses testified, the accused pleaded guilty.

• Whether the accused properly convicted of kidnapping or unlawful detention under section 93(1)(b)(ii) of the Criminal Law (Codification and Reform) Act when the juveniles went with him voluntarily
• Whether the offence was committed in aggravating or mitigating circumstances
• Whether the sentence of 8 years imprisonment was appropriate

Conviction confirmed. Sentence set aside and substituted with 4 years imprisonment, of which 2 years suspended for 4 years on condition the accused does not commit an offence involving kidnapping or unlawful detention for which he is convicted and sentenced to imprisonment without the option of a fine. Both counts treated as one.

Under section 93(1)(b)(ii) of the Criminal Law (Codification and Reform) Act, a person commits kidnapping or unlawful detention when they detain or keep a child intending to deprive the child's lawful custodian of control over the child, even where the child goes with the accused voluntarily. The mischief sought to be prevented is the deprivation of the lawful guardian's control over the child. The consent of the minor is not a defense to the charge. A court must make a finding as to whether the offence was committed in aggravating or mitigating circumstances as this affects the applicable penalty, and failure to do so constitutes a misdirection.

The court observed that many young people from the region are deserting their parents or lawful guardians to seek fortune in South Africa, and in most cases the children end up in abusive circumstances. The court noted that cases of human trafficking of children are prevalent and a deterrent sentence is called for. The court also commented that if the complainants had been adults, there would have been no offence, but because they were juveniles the accused committed the charged offence. The court noted that if the children had been forced, the charge would have been under section 93(1)(b)(i) rather than section 93(1)(b)(ii).

This case clarifies the application of section 93(1)(b)(ii) of the Criminal Law (Codification and Reform) Act in Zimbabwe, establishing that kidnapping or unlawful detention of minors can occur even when the children go voluntarily with the accused, as the offence focuses on depriving lawful guardians of control over their children. The case also addresses sentencing considerations in human trafficking cases involving children and the distinction between aggravating and mitigating circumstances in kidnapping offences. It highlights the courts' concern with the prevalence of human trafficking of children to South Africa and the need for deterrent sentences.