Dr Nandipha Magudumana loses her arrest challenge

The high court in Bloemfontein has dismissed the application by Dr Nandipha Magudumana to have her arrest and detention declared unlawful and wrongful. 

Judge Phillip Loubser also slapped Magudumana with a cost order for two counsels. 

Though Loubser said it was evident the process used to bring Magudumana back to the country was extradition without due process and not deportation, she was well aware of the charges she would face when she arrived back in South Africa from Tanzania. 

“She consented to her removal because she wanted to be with her children.”

Magudumana, who was with escaped prisoner Thabo Bester at the time of her arrest, has two daughters from a previous relationship.

“The applicant [Magudumana] was aware at the time of her handing over [by Tanzanian to South African authorities] of the charges she would face. She nevertheless consented, and based on that the application is dismissed,” Loubser said.

The court said it has to accept the decision to deport Magudumana to her country of origin was taken by Tanzanian authorities, but maintained the key question is whether South Africa and Tanzania colluded in the deportation. 

“Deportation is usually a unilateral act while extradition is consensual. It is patently clear the respondents [police and home affairs] willingly participated in the handing over at the airport, believing that such handing over was done under international law. 

“They didn't realise this handing over was an extradition and not a deportation,” Loubser said. 

The judge said should Magudumana wish to challenge the decision on her deportation, she should approach the court in Tanzania as South African courts have no jurisdiction. 

Loubser said he could not rely on the affidavit filed by an official in the office of the South African high commission in Tanzania.

He struck the affidavit from evidence as he said it was riddled with inconsistencies. According to the judge, the official made contradictory statements in the two affidavits she filed. 

“It cannot be that on the one hand the official says a decision was made to deport them and on the other hand say there is an agreement in the two countries.

“The other thing is that the affidavit doesn't say when the agreement was concluded. The court cannot rely on her evidence,” the judge said. 

Loubser also struck out some evidence Magudumana brought in her replying papers.

In her papers, Magudumana said she had enlisted the services of a lawyer in Tanzania to challenge her detention in that country. She also made reference to statements issued by the police shortly after her arrest in April. 

The judge said he could not entertain those new facts brought by Magudumana as she failed to bring them up in her founding papers. 

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