Nandipha Magudumana's legal counsel will on Thursday argue in the Constitutional Court that her deportation from Tanzania was a disguised extradition, raising critical constitutional questions about her legal rights.
Image: File
Nandipha Magudumana's legal team will argue at the Constitutional Court on Thursday that Tanzanian authorities who handed her over to officials of the South African High Commission in Tanzania amounted to a disguised extradition.
Her legal team will also argue that her subsequent removal to South Africa was unconstitutional and invalid.
Magudumana, who submits that her arrest and deportation were unlawful, has taken her appeal bid to the apex court after it failed at the Supreme Court of Appeal.
Magudumana and her co-accused, Thabo Bester, became wanted fugitives after she and Bester - who escaped from Mangaung Correctional Facility in Bloemfontein while serving a life sentence - evaded justice in South Africa.
The duo is facing a total of 38 counts ranging from fraud, corruption, money laundering, assisting an inmate to escape, violation of the body, arson, and defeating the ends of justice.
They were arrested in Arusha, Tanzania, in April 2023 after she was found to be in the country illegally without documentation. Together with Bester, they were deported after Tanzanian authorities declared that she had contravened the Tanzanian Immigration Act, whereafter Magudumana has since been detained at the Bizzah Makhate Correctional Centre in Kroonstad.
The Constitutional Court is expected to rule on whether South African courts lack the jurisdiction to prosecute her in the country and whether she should be released from the correctional facility.
In Magudumana’s heads of argument, she said: “A disguised extradition occurs when States use the mechanism of deportation to achieve the objectives of extradition. They do this by reaching an agreement that an individual wanted for criminal proceedings should be returned through the mechanism of deportation rather than extradition. The purpose is to evade the process for extradition, and to circumvent the rights that an extraditee has under extradition law.”
Magudumana’s legal counsel argues that she “enjoys strong prospects of success”.
“There are several important constitutional questions raised in the application. Consent to an unlawful act, the lawfulness of circumventing a binding treaty, and engaging in a parallel process to achieve what is provided for in the treaty are all important constitutional issues that warrant the consideration of this court,” court documents read.
The State maintains that her deportation was lawful “because an agreement was reached between South Africa and Tanzania, in accordance with international protocols”.
They also submit that when Magudumana was handed over to the Department of Home Affairs officials in Tanzania, they were entitled to arrest her in terms of Section 41 of the South African Immigration Act.
Cape Times