Judgment day for Dr Nandipha Magudumana seeking to declare her arrest unlawful

The high court in Bloemfontein is expected to hand down judgment on Monday morning in the urgent court application brought by Dr Nandipha Magudumana which seeks to have her arrest and detention declared wrongful and unlawful.

Last Thursday Magudumana’s legal counsel, advocate Anton Katz SC, argued in court that her deportation was a disguised extradition in which there was collusion between South African authorities and Tanzania.

“The police and National Prosecuting Authority (NPA) contend there was a deportation decision by Tanzania on April 12 that required the applicant [Magudumana] to leave Tanzania within three days. 

“The conduct of the respondents is quintessentially a disguised extradition. There was no unilateral act on the part of Tanzania because there was an agreement to deport to South Africa,” Katz said.  

He maintained  local authorities followed the wrong procedure because instead of seeking the extradition of Magudumana, they agreed with Tanzania to arrange her deportation to South Africa.

“In doing so, they overlooked the correct mechanism for securing the presence of a sought person in South Africa,” he said.

“The respondents acted in a procedurally irrational manner by securing an agreement to deport the applicant rather than after the extradition process.” 

Advocate Neil Snellenburg, representing the police and the NPA, told the court Magudumana’s matter is not urgent and asked that it dismiss her application.

“The applicant has had from April 14 to issue this application. There is no explanation for the delay and what occurred after her attorney was appointed on May 3. 

Snellenberg said Magudumana had ample time to bring the application and hasn't told the court why the matter is urgent.

“This is an abuse of process,” he said.    

Snellenberg claimed Magudumana's founding affidavit is “utterly untruthful”.

He said Magudumana doesn't mention in her founding affidavit that she had told officials she wanted to go home because she's a mother.

“At no time at all did Magudumana object to getting on the plane. That supports that she wanted to come home to her children,” Snellenberg told the court.

Snellenberg told the court Tanzanian police arrested Magudumana and her partner Thabo Bester because they entered the country illegally.   

“Bester is a convicted serial rapist and murderer who escaped from prison. There is nothing untoward about a delegation that went to Tanzania,” he said.

Advocate Petrus Zietsman, representing the home affairs department, argued there was nothing sinister in co-operation between the South African and Tanzanian governments and said the agreement between the two governments to deport doesn't make it a disguised extradition. 

“Let's say Magudumana wants to challenge her arrest by Tanzanian authorities. If we take that argument, this court doesn't have jurisdiction to rule on Tanzanian laws,” Zietsman said. 

Judge Phillip Loubser will give his verdict on Monday morning.

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