Nandipha Magudumana and Thabo Bester during an earlier appearance in the Bloemfontein High Court.
Image: File.
The Constitutional Court will in May take another look at the extradition of Nandipha Magudumana from Tanzania, alongside her partner Thabo Bester in 2023.
Magudumana turned to the apex court after the Supreme Court of Appeal earlier dismissed her appeal to have her arrest and deportation from Tanzania declared unlawful. Magudumana and Bester were arrested in Tanzania after fleeing the country following Bester’s escape from the Mangaung Correctional Facility in Bloemfontein.
The court earlier dismissed Magudumana’s application for her arrest and deportation from Tanzania in April 2023 to be declared unlawful and set aside. Magudumana and her co-accused are 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. Their criminal trial is scheduled to start on July 20 in the Free State High Court.
Magudumana has been incarcerated at the Bizzah Makhate Correctional Centre in Kroonstad since her return from Tanzania three years ago. According to her, her return to South Africa was unlawful as it bypassed the formal extradition process.
She maintains that it was a disguised extradition, which is unlawful under international and South African law. She argued that it concerns the use of deportation procedures to achieve the objectives of extradition.
She earlier challenged her “disguised” extradition before the Free State High Court, which held that the police and home affairs acted unlawfully by using deportation to achieve extradition objectives. But the court held that Magudumana consented to the extradition, which had the effect of rendering her return to South Africa lawful.
The SCA, in a majority judgment, meanwhile turned down her appeal on a legal point, without going into the merits of the matter, as it found that she for the first time raised the point of an “unlawful, disguised extradition” in her case before it, which is unlawful.
A minority judgment by the SCA, however, held that the court attached too much weight to the words “disguised extradition” and that it should have considered her case as set out in her founding affidavit before the SCA.
In her application before the ConCourt, she referred to her application before the SCA where she stated that she never had an extradition hearing and none of the extradition procedures were followed. She was never brought before a court in Tanzania and was not given a chance to challenge her removal from that country.
She also referred to the SCA minority judgment in which it was found that the respondents’ conduct was inconsistent with the Constitution and that the police and home affairs acted unlawfully.
It is stated in her latest affidavit, issued on her behalf by her attorney Machini Motloung, that both the high court and the SCA minority judgment were correct in concluding that Magudumana had made out a case that her return to South Africa was a “disguised extradition".
The State, in its answering affidavit before the Constitutional Court, maintained that her removal from Tanzania was above board. “The applicant was lawfully arrested and detained by Tanzanian authorities because she was in the country illegally,” they said.
In denying that she was abducted, the State said the South African authorities only took custody after Tanzania completed its own lawful process. The Constitutional Court is due to hear the matter on May 14.
zelda.venter@inl.co.za