By Lehlohonolo Lehana.
Disgraced Dr Nandipha Magudumana’s has filed her notice of application for leave to appeal to the Supreme Court of Appeal, saying there were “compelling reasons” for the high court to grant her leave to appeal.
On Monday, the Free State High Court in Bloemfontein ruled that Magudumana was to remain in custody, after Judge Philip Loubser dismissed her urgent application.
Magudumana was challenging her arrest and deportation in the hopes of being released from custody.
In his ruling, Judge Loubser 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.
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.
In her court papers, Magudumana argued that the Constitutional Court and the SCA have yet to consider whether consent may be given to an unconstitutional and unlawful act.
“If the applicant was entitled to consent to her disguised extradition, then the SCA should consider whether the requirements for consent applicable to extraditions generally would apply to her disguised extradition,” the papers read.
Magudumana submitted that the court erred and misdirected itself.
The respondents in the matter include the Department of Home Affairs, Free State Director of Public Prosecutions, investigating officer Captain Tiego Jobo Flyman, the head of the Bizzah Makhate Prison, and the minister of police.
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.