Judge rejects Dr Nandipha’s urgent bid for freedom
But the state made mistakes and almost lost the case
Nandipha Magudumana has lost her bid for freedom.
Free State High Court Judge Philip Loubser, in his ruling on Monday, found that she had consented to her removal by South African Home Affairs officials from Tanzania, because she wanted to return home “to be with her children”.
“At the very least she had willingly acquiesced to her transportation back to South Africa,” the judge said.
He referred to case law, determined by the Supreme Court of Appeal, which held that where the transportation of a person investigated for criminal offences from a foreign jurisdiction is consented to, there is no violation of such a person’s fundamental human rights, or international law.
“I am bound by this,” he said, dismissing Magudumana’s urgent application for an order declaring her apprehension in Tanzania unlawful, as well as her arraignment before the Bloemfontein Magistrates Court and warrants for her arrest null and void. He ordered her to pay the costs.
Magudmana claimed in her court papers that she was blindfolded and “abducted,” and had been subjected to a “disguised extradition” when she, along with convicted rapist and murderer Thabo Bester, were handed over by Tanzanian officials to South African officials. They were then flown, in a private plane, flanked by SANDF and SAPS, back to South Africa on 12 April.
Judge Loubser said he accepted the version presented by the respondents - the National Director of Public Prosecutions, the Minister of Police and the Minister of Home Affairs - that she had told “all and sundry” that she wanted to go home.
Magudumana, in her replying affidavit, bluntly disputed this.
However, the judge said, in terms of established law in South Africa — over six decades – where there is a material dispute of fact, and the matter is not referred to oral evidence, it has to be adjudicated on the facts stated by the respondents, unless that version is palpably implausible and far-fetched.
“The answering affidavit, on behalf of the Public Prosecutions and SAPS states that when she was handed over by the South African High Commissioner (in Tanzania) she did not verbally or otherwise, offer any resistance,” the judge said.
He said he had no doubt that at that time, Magudmana was well aware of the charges that would be levelled against her but had nevertheless consented to her removal.
The judge said, however, that he did not agree that the team of South African officials who flew to Tanzania to get Magudumana (and Bester) had done nothing wrong.
“It is patently clear on their own version that they willingly participated in the handing over event at the airport, believing it was done in terms of international law and law in Tanzania.
“The respondents were aware that she was handed over for purposes of her prosecution. What they did not realise was that it was an extradition without process and not a deportation. This is what the law says,” he said.
In his ruling, he explained the difference between deportation and extradition. Deportation is the removal of an illegal foreigner. Extradition is the handing over by one state to another of a person accused of a crime.
Magudumana is being held at Bizzah Makhate Correctional Centre in Kroonstad.
She is facing charges of fraud, violating dead bodies and aiding Bester’s escape from Mangaung prison in May 2022.
She has yet to apply for bail.
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