Magudumana must stay in prison, SCA rules

Nandipha Magudumana at the Bloemfontein Magistrates’ Court in August 2023. Archive photo: Becker Semela

• The Supreme Court of Appeal has ruled that Nandipha Magudumana’s return to South Africa from Tanzania was not unlawful and that she must still stand trial.
• But one of the four judges penned a minority ruling, saying that he would have released Magudumana and stopped the criminal proceedings against her.
• This means Magudumana may take the matter to the Constitutional Court.

Nandipha Magudamana has failed to persuade the Supreme Court of Appeal that she was unlawfully forced to return to South Africa after being arrested in Tanzania alongside escaped convict Thabo Bester in April 2023.

Magudumana faces multiple charges for helping Bester escape from prison in May 2022. She is currently in prison awaiting trial, which is set to start in July.

Her legal team had argued that her constitutional rights were violated, that she should be immediately released from custody and the charges should be declared “null and void”.

This was an appeal of a previous judgment in the Bloemfontein High Court in which Judge Phillip Loubser ruled that her constitutional rights had not been violated.

Loubser ruled that while her arrest in Tanzania was a “disguised extradition” without due process, it was not unlawful because she had willingly come back to South Africa.

He refused her application for leave to appeal. But on petition, the SCA agreed to hear the matter.

On Friday the SCA ruled against her by majority. Concurring were justices Fayeeza Kathree-Setloane, Trevor Gorvan and Nettie Molopa-Sethosa.

But because of a minority ruling in her favour by Justice Tati Makgoka, Magudumana may attempt to take the issue to the Constitutional Court.

In Friday’s ruling, SCA deputy president Justice Dumisani Zondi said the high court had found that Magadumana was aware of the charges against her when she was handed to South African officials in Tanzania, but nevertheless she had consented because she wanted to be with her children.

Magudmana’s legal team had claimed that she should have been surrendered in terms of Tanzanian law. No extradition hearing had taken place so her removal was unauthorised.

But the respondents — the Director of Public Prosecutions, Free State, the Minister of Police and the Minister of Home Affairs — said that she was unlawfully in Tanzania when she was handed to the Department of Home Affairs immigration officials and did not offer any resistance or protest.

She had also informed “all and sundry” that she wanted to return to South Africa to her children, they said. They denied that she was at any stage blindfolded or that SAPS played any role in the handover.

“The version of the minister is that members of SAPS were not involved in her arrest or her removal from the country. There is no reason to reject this version,” he said, noting that she had only been arrested by South African police when she landed at Lanseria airport.

There was also nothing sinister about the fact that SAPS members were on the plane because Bester was regarded as extremely dangerous.

In respect to the Minister of Home Affairs, Zondi said there was simply no case.

Magadumana had contended there was “collusion” between South Africa and Tanzania to secure her deportation in order to evade extradition procedures.

But Zondi said this was a “factual” dispute which had to be determined in favour of the minister.

“I find that the appellant was not arrested by members of SAPS and therefore that she has failed to show that the police acted unlawfully. There is overwhelming evidence that she and Mr Bester were arrested by Tanzanian authorities for having violated the immigration laws of that country. When she arrived at Lanseria airport, she was lawfully arrested by members of SAPS,” he said.

Minority judgment

In his dissenting judgment, Justice Makgoka said he would have upheld the appeal, stopped the criminal proceedings and ordered her release.

He said even if Magadumana had not been arrested by SAPS in Tanzania, consideration should be given to the lawfulness of her being handed over by Tanzanian authorities to South African authorities.

He said his fellow judges had not properly dealt with the issue of the “disguised extradition” and should the matter go to the Constitutional Court, that court would not have the benefit of the SCA’s view on the issue.

He said he agreed with the Bloemfontein ruling that it was a disguised extradition.

He said there was no procedure in international law in terms of which a fugitive from justice could simply be “handed over” – that could only be done through an extradition process.

Any agreement between the two countries was “unlawful”, he said.

As a prohibited immigrant, she had to be kept in custody until she boarded a ship or aircraft to leave Tanzania. It was her right to choose her destination but that had been violated.

“On the facts, it is clear that the South African authorities went to Tanzania with only one purpose in mind — to take the appellent into custody for her to face prosecution,” Makgoka said.

He said the respondents’ reliance on her alleged co-operation and consent did not apply in a case where there had been a finding (by the high court) that it was an unlawful disguised extradition.

“I am of the view that a valid consent can only be made with prior and full knowledge of the rights being waived and not after an infraction of such rights had occurred.

“What real choice, it may be asked, did she have? It is safe to assume that had she indicated that she wished to go to any other country except South Africa, her wish would not have been respected.”

Makgoka said given the gravity of the allegations against Magadumana, his finding would “understandably evoke indignation from the public”.

“But the state cannot be allowed to act unlawfully.”

He said he would have upheld the appeal and declared that the handover was unlawful. He would have declared that the NPA lacked jurisdiction to try Magadumana and that she be released from custody.

Support independent journalism
Donate using Payfast