By Lehlohonolo Lehana.
The Department of Correctional Services (DCS) has refuted claims of preferential treatment towards rapist and murderer Thabo Bester and his accomplice Dr Nandipha Magudumana.
National Commissioner of Correctional Services Makgothi Thobakgale accompanied by provincial and Correctional Services officials visited Bester’s cell at the Kgosi Mampuru Correctional Facility in Pretoria yesterday afternoon on a routine prison inspection.
Thobakgale also visited the women’s facility in Kroonstad in the Free State where Dr Magudumana is being held.
During her inspection at Kgosi Mampuru Correctional Facility, Bester presented her with a list of complaints, refusing the media to take his picture and would not speak to reporters.
He also shouted that he was being tortured, an allegation that the Correctional Services has since denied.
Meanwhile in the Free State, Thobakgale said Magudumana is being kept in a communal cell.
“She is in this section because she is a high-profile offender, that is still under investigation. Number two is to ensure that she doesn’t get into contact with any item that would interfere with the process of investigations.”
Magudumana launched an application to appeal the court’s decision which dismissed her urgent application to have her arrest in Tanzania declared unlawful.
Her lawyers argued in the High Court in Bloemfontein on Friday.
Magudumana was arrested with convicted murderer and rapist Thabo Bester in Arusha in April this year.
She is accused of helping Bester escape from the Mangaung Correctional Centre last May.
Her lawyer Advocate Kessler Perumalsamy says there are reasonable prospects of success in the appeal.
“We submit that there are reasonable prospects of success and compelling reasons. We submit that this court should grant leave because the question is whether you can consent to an illegality cut thought to both reasonable prospects of success and compelling reasons.”
State prosecutor Advocate Neil Snellenburg disagreed.
“There is no way that the applicant is going to convince any court that where she was at the very least request to come back to South Africa, that by doing so she now waved some constitutional right to be stuck in some country, she wanted to be there. There is no court that will make such a finding.”
The law is more often than not about logic. We know what happened here: she wanted to come home, she came home.”
“Now she says, contrary thereto, they should have left her be and followed protocol, not have brought her back,” Snellenberg said. “The moment she consented or acquiesced, there is no unlawfulness. Should they have left her in Tanzania, when she wanted to come home?”
Snellenberg said there are no prospects for success of an appeal.
“There is no way that the applicant is going to convince any court that where she at the very least acquiesced to come back to South Africa, that by doing so she now waived or abandoned some constitutional right to be stuck in a country.”
Snellenberg also argued that Magudumana’s case has changed since the application was first launched. Magudumana first claimed that she had been abducted by the SAPS, which was refuted in court, yet she never amended the notice of motion.
Advocate Louis Pohl, appearing on behalf of the Department of Home Affairs, argued that Judge Phillip Loubser had correctly decided, in his judgment, that because of the dispute in facts in the applicant’s and respondents’ affidavits, the case should be heard on the evidence provided by the respondents.
Because the respondents’ version is that Magudumana consented to come back to South Africa, Pohl argued, the appeal will have no chance of success.
Judge Loubser said he will hand down his decision on Tuesday 18 July on whether to grant Magudumana leave to appeal .
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