By Daniel Steyn, GroundUp
Dr. Nandipha Magudumana asked the Free State High Court on Friday for leave to appeal her failed application to have her arrest and return to South Africa declared illegal and unconstitutional.
Magudumana wants the highest court of appeal to test whether she could have agreed to an “unlawful extradition”.
However, Judge Philip Loubser will only decide on Tuesday whether he will grant Magudumana’s application for leave to appeal.
In May, Magudumana submitted an urgent application in which she asked the court that her arrest in Tanzania and extradition to South Africa together with convicted murderer Thabo Bester was unlawful.
Magudumana wanted the court to release her from custody and ruled that the Bloemfontein Magistrate’s Court – where she is on trial on various charges, including fraud and corpse violation – did not have jurisdiction to try her on these charges.
Loubser dismissed the application with costs in June and said he agreed with Magudumana that her expulsion from Tanzania may have been disguised as an extradition. However, she did not oppose her at any stage when she was brought back to South Africa, the judge found.
Kessler Perumalsamy, Magudumana’s legal representative, said in court on Friday that Magudumana could not, however, consent to an unlawful act.
“We argue that you can never consent to an illegal act,” said Perumalsamy.
He also argued that the requirements for Magudumana’s consent were not met in that it was neither in writing nor clear.
“Did Dr. Magudumana agreed to a disguised extradition? To whom was the permission given? We are not told anything about this,” Perumalsamy told the court.
Adv. Neil Snellenberg, who appeared on behalf of the South African Police Service (SAPS), maintained that Magudumana told “everyone” that she wanted to return home to her children.
“We know what happened here: she wanted to come home, so she came home,” he said.
“Now she says, contrary to that, they should have left her and followed protocol, not brought her back. The moment she agreed or consented, there was no illegality. Should they have left her in Tanzania when she wanted to come home?”
Snellenberg believes that there is no prospect of success for an appeal.
He also argued that Magudumana’s story had suddenly changed since the application was first submitted to the court. Magudumana first claimed that she was abducted by the police, which was refuted in court, but she never amended the notice of motion.
Adv. Louis Pohl, who appeared on behalf of the Department of Internal Affairs, said Loubser rightly found in his judgment that the case should be heard through the evidence that was given due to the factual dispute in the applicants’ and respondents’ affidavits.
Because the respondents’ version is that Magudumana agreed to come back to South Africa, Pohl argued that the appeal has no chance of success.
- This post was originally published on GroundUp and is used here with permission.