14 July 2023
An application by Nandipha Magudumana for leave to appeal agains a previous decision was heard in the Free State High Court on Friday. Illustration: Lisa Nelson
Dr Nandipha Magudumana has asked the Free State High Court for leave to appeal the dismissal of her application to have her arrest and return to South Africa declared unlawful and unconstitutional.
Magudumana wants the Supreme Court of Appeal to test whether she could have consented to an unlawful extradition.
In her urgent application, which was launched in May, Magudumana had asked the court to declare that after she was arrested in Tanzania she was unlawfully extradited to South Africa, along with escaped convict Thabo Bester, on 7 April.
Magudumana wanted the court to order that she be released from custody and to rule that the Bloemfontein Magistrates Court (where she is facing several charges including fraud, aiding an escape and violating dead bodies) does not have jurisdiction to try her on those charges.
On 5 June, Judge Loubser found that Magudumana had indeed been extradited without process, but that she had consented to board the chartered plane that brought her back to South Africa.
But during a hearing in the Free State High Court on Friday, Magudumana’s advocate, Kessler Perumalsamy, argued that Magudumana could not have consented to an unlawful act.
“We submit that you can never consent to an illegality,” Perumalsamy said.
He also argued that the requirements for informed consent were not met: the consent was not in writing and was not clear or unequivocal.
“Who was she consenting to? Was Dr Magudumana consenting to a disguised extradition? To whom was the consent made? We are not told,” Perumalsamy said to the court.
Advocate Neil Snellenberg, appearing on behalf of the South African Police Service (SAPS), insisted that Magudumana had told “all and sundry” that she wanted to go home to her children.
“The law is more often than not about logic. We know what happened here: she wanted to come home, she came home.”
“Now she says, contrary thereto, they should have left her be and followed protocol, not have brought her back,” Snellenberg said. “The moment she consented or acquiesced, there is no unlawfulness. Should they have left her in Tanzania, when she wanted to come home?”
Snellenberg said there are no prospects for success of an appeal.
“There is no way that the applicant is going to convince any court that where she at the very least acquiesced to come back to South Africa, that by doing so she now waived or abandoned some constitutional right to be stuck in a country.”
Snellenberg also argued that Magudumana’s case has changed since the application was first launched. Magudumana first claimed that she had been abducted by the SAPS, which was refuted in court, yet she never amended the notice of motion.
Advocate Louis Pohl, appearing on behalf of the Department of Home Affairs, argued that Judge Loubser had correctly decided, in his judgment, that because of the dispute in facts in the applicant’s and respondents’ affidavits, the case should be heard on the evidence provided by the respondents.
Because the respondents’ version is that Magudumana consented to come back to South Africa, Pohl argued, the appeal will have no chance of success.
Judge Loubser said he will hand down his decision on Tuesday 18 July on whether to grant Magudumana leave to appeal .