By Lehlohonolo Lehana.
Dr. Nandipha Magudumana’s urgent application to have her arrest and deportation in Tanzania declared unlawful has been dismissed with costs.
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.
Magudumana, who is in custody at the Kroonstad female correctional centre, made an urgent application to have her arrest declared unlawful and unconstitutional.
She filed urgent court papers, claiming that her arrest in Tanzania in April 2023 was unlawful and unconstitutional.
Judge Loubser said claims that Magudumana had instructed a lawyer in Tanzania to fight “unlawful” detention is struck because it’s not mentioned in her founding affidavit. He says evidence point to it that Magudumana did give consent.
The judge said the court does not have jurisdiction over her arrest in Tanzania and if she wishes to take up the manner of her arrest, she should do so with the Tanzanian authorities.
On Thursday 5 June 2023, lawyers representing the police, the National Director of Public Prosecution (DPP), and Home Affairs said the “urgency” claims of Magudumana were self-created.
Adv. Neil Snellensburg represented the state, the police and the DPP, and told the presiding judge on Thursday 1 June 2023 that the urgent High Court application is a self-created “urgency” and there was no basis for such claims.
Adv. Snellensburg said Magudumana only revealed her intentions to come back home to South Africa after the Tanzania authorities arrested her and gave her 3 days to leave the country.
He disputed Magudumana’s allegations that she was arrested by SAPS officials. Adv. Snellensburg said she was never arrested nor handcuffed in Tanzania by SAPS, instead, she was handed over to the High Commissioner of South Africa by Tanzanian authorities.
Lawyer Adv. Joubert Zietaman, who represented Home Affairs, said Magudumana failed to make out a case that she was arrested in Tanzania by members of the SAPS, that she was abducted by SAPS, and that she was transported by SAPS back to the country.
“The facts respectively show that the applicant was arrested in Tanzania by Tanzanian officials for breach of the Tanzania Immigration Act and that Tanzania exercised a discretion to deport the applicant to her country of origin, namely South Africa,” Zietsman added.
In its papers filed before the court on Monday 29 May, the state argued that Magudumana was arrested on 13 April at Lanseria airport by officials who were not part of the Tanzanian mission.
They argued that her arrest was lawful and constitutional. It’s understood that her warrant of arrest was issued on 3 April and at that time she and Thabo Bester were believed to have been on Tanzanian soil already.
A well-renowned Human Rights Commission lawyer Advocate (Adv.) Anton Katz (SC) told Judge Loubser that the state failed to play open cards with Magudumana during her arrest in Tanzania.
He said the state needed Magudumana’s consent.
Adv. Katz, who is representing Magudumana pro bono, said the state should have told her of varying options which included whether she should be brought back into the country by either extradition or with her consent. He told the court that his client’s liberty was at stake.
Adv. Katz said the onus is on the state to prove that Magudumana’s arrest was lawful and constitutional.
He said the South African mission to arrest Magudumana in a foreign country was wrong and unlawful in a legal context and internal law. He said her arrest in Tanzania was a disguised deportation. Adv. Katz said they are disputing the claims by the state that Magudumana was handed over to them by the Tanzanian authorities.
She is facing charges of fraud, violating dead bodies and aiding Bester’s escape from Mangaung prison in May 2022.
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