By Lehlohonolo Lehana.
The Free State High Court on Thursday heard Dr Nandipha Magudumana’s urgent application against the government in which she wants the court to declare her detention in Tanzania and return to South Africa unlawful.
Judge Phillip Loubser is expected to hand down judgment on Monday, 5 June.
Last week, Magudumana filed urgent court papers in the High Court over her alleged “unlawful arrest”. Judge Phillip Loubser postponed the civil matter between the parties to allow for written and replying arguments, and for lawyers representing the Minister of Home Affairs, Dr Aaron Motsaoledi, to enter the fray over her arrest.
Respondents included the South African Police Service (SAPS) and National Prosecuting Authority (NPA). The Department of Home Affairs (DHA) was later added as a respondent.
Magudumana, who is in custody in the Kroonstad prison for her alleged involvement in Thabo Bester’s escape on 3 May 2022, wanted the state to provide her with further documents about her arrest and extradition. In the court papers, Magudumana listed the Minister of Police, Bheki Cele, the state witness Captain Tieho Flyman, and Magistrate Mohlolo Khabisi as respondents, among others.
Magudumana’s counsel has argued at the high court in Bloemfontein on Thursday that her deportation was actually an extradition.
She roped in top international law advocate Anton Katz SC, who told the court Magudumana’s deportation was a disguised extradition where there was collusion between South African authorities and Tanzania.
“The SAPS and NPA contend that there was a deportation decision by Tanzania on April 12, which required the applicant [Magudumana] to leave Tanzania within three days.
“The conduct of the respondents is quintessentially a disguised extradition. There was no unilateral act on the part of Tanzania because there was an agreement to deport to SA.
The applicant was not entitled to place herself beyond Tanzania’s borders within three days, because she was handed over to SA officials who exercised custody over her. And the basis of her deportation was to achieve the purpose of extradition — namely, securing the presence of the applicant in SA to stand trial on criminal charges, “Katz said.
Katz maintained that the SA authorities followed the wrong procedure because instead of seeking the extradition of Magudumana, they agreed with Tanzania to arrange her deportation to SA.
“In doing so, they overlooked the correct mechanism for securing the presence of a sought person in SA,” he said.
“The respondents acted in a procedurally irrational manner by securing an agreement to deport the applicant rather than after the extradition process.”
Advocate Neil Snellenberg, represents the Director of Public Prosecutions Free State (from the NPA), the Minister of Police, and SAPS Captain Tieho Flyman, who is the investigating officer in the Thabo Bester case.
Snellenberg said that Magudumana’s application is not urgent. Magudumana had spent almost a month in detention before deciding to bring this matter to court. He said that Magudumana did not comply with the established practices pertaining to urgent applications.
He said that Magudumana’s arguments in court were mostly based on the answering affidavits of the respondents, which were “drawn in urgency … under undue pressure”.
He said that Magudumana had failed to make a case in her founding affidavit. “It’s a matter of the applicant abusing the process and she wants to get mileage from it, “he said.
Snellenberg said Magudumana had lied in her founding affidavit and that was why she was basing her case on the respondents’ answering affidavits.
Advocate Joubert Zietsman, for the Department of Home Affairs, argued that the Tanzanian government had ordered Magudumana to leave the country “through escort” and that the Tanzanian authorities had decided that Magudumana should be deported to South Africa.
“If it stands firm that the decision was made by Tanzania to deport, then it was going to be through an escort, not what the applicant decides and that it will be back to South Africa. The applicant cannot take issue with any of those,” Zietsman said.
In response, Katz said that there appeared to be an inconsistency in the versions of the different state departments: Snellenberg had argued that Magudumana consented to get onto the plane, while Zietsman argued that she was put there by Tanzanian authorities. “The respondents can’t have it both ways,” Katz said.
Judge Loubser said: “This is probably the first case in my life where the applicant only relies on the respondents’ version, while the respondents only rely on the applicant’s version.”
Katz laughed and said, “It is unusual, but that’s what happens when you have a government that plays possum when it comes to the liberty of an individual.’ Katz implored the court to rule that the South African government’s conduct in Tanzania was unlawful.
Judgement has been reserved.
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