Nandipha Magudumana was arrested in Tanzania with convicted murderer and rapist and prison escapee Thabo Bester in April 2023
- Nandipha Magudamana will argue in the Supreme Court of Appeal this week that her constitutional rights were violated through her "forced return" to South Africa.
- But the State says her own affidavit in her bail application proves that she returned voluntarily.
- The State says if the SCA finds that her return was unlawful, it should order that she be released from custody but continue to face criminal charges.
Nandipha Magudumana's legal team will argue before the Supreme Court of Appeal (SCA) on Thursday that she should be immediately released from custody and the charges against her be declared "null and void".
In written arguments, they say her arrest in Tanzania in April 2023 (with convicted murderer and rapist Thabo Bester) and her "forced return" to South Africa was unlawful and invalid.
Her legal team previously raised this "disguised extradition" argument in the Bloemfontein High Court.
While that court concluded that officials had acted unlawfully, it held that Magudumana had consented to come back to South Africa, to be with her children, and that when she was handed over to Department of Home Affairs officials by the South African High Commission, she offered no resistance.
Judge Phillip Loubser ruled that her constitutional rights had not been violated. He refused her application for leave to appeal.
But the SCA has agreed to hear her case.
Her lawyers will submit that she could not have consented to an unlawful extradition.
"The High Court concluded that the version of the respondents [the Director of Public Prosecutions, the Minister of Police and the Minister of Home Affairs] established that they had colluded with the government of Tanzania to deport Magudumana to South Africa, evading the lawful process under the SADC Protocol on Extradition.
"But despite concluding that they had acted unlawfully, the High Court held that (Magudumana) had consented ... that she had told 'all and sundry' that she wanted to return to South Africa".
Her lawyers say no one could consent to an illegality and there was no evidence that she had been informed of her rights or that she had waived those rights.
The consequence of this "disguised extradition" was that criminal courts were precluded from exercising criminal jurisdiction over her.
An issue which will be argued before the SCA will be an application by the respondents to adduce further evidence in the appeal: the affidavit Magudumana made in her bail application.
The state says the fact that she applied for and was refused bail in a South African court means that the appeal is moot.
But her lawyers say this is not true, that the court hearing on the bail application had not determined the correctness or otherwise of her arrest in Tanzania, but had simply determined whether she was likely to evade her trial, if released on bail.
The state says the High Court's finding of consent was supported by her own evidence in the bail application - that she had been abducted by Bester, that he had forced her into a vehicle and instructed her to leave with him to a destination unknown to her at the time.
She further said that she had succumbed to Bester's pressure and threats, that she was defenceless and helpless, that she had no reason to leave the country.
It was further clear from the affidavit that she is a mother of two young children.
Based on these facts, it was logical that she would have willingly returned to South Africa on a plane chartered by Home Affairs.
"There are exceptional circumstances why this evidence should be accepted. The relief sought by the appellant [Magudumana] will have far-reaching implications in that it will have an effect of permanently staying the prosecution of her on the serious criminal charges that she presently faces before the criminal court," the state has submitted.
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The state argues that the appeal should be dismissed but, in the event that the court finds that her return was unlawful, a just and equitable remedy would be one directing her release on detention on warning and the prosecution should continue.
"Where an order might have a severe impact that the state will be prevented from prosecuting an offence, the court should consider the nature of the offences involved and the societal need to bring an accused person to trial. The families of persons whose bodies (corpses) were stolen and mutilated have an interest in the matter as do the public. These interests must be weighed and cannot be simply ignored," the state respondents submitted.
Magudumana is accused of aiding and abetting convicted rapist and murderer Thabo Bester to escape from prison last year, of defeating the ends of justice, of arson, fraud and violating a body.
