Nandipha Magudumana appear at Bloemfontein High Court on 5 June 2024. Picture: Gallo Images / Mlungisi Louw
Nandipha Magudumana has accused South African authorities of colluding with Tanzania to deport her and her former partner, Thabo Bester, back to South Africa.
On Thursday, the Supreme Court of Appeal (SCA) heard Magudumana’s appeal challenging her arrest in Tanzania.
She was granted leave to appeal by the SCA after filing a petition.
Magudumana is contesting a July 2023 ruling by the Free State High Court in Bloemfontein, which dismissed her appeal.
Her initial application, challenging the legality of her arrest, was rejected on 5 June 2023.
The court ruled that she had consented to be returned to South Africa to be reunited with her children.
During Thursday’s proceedings, Magudumana’s legal representative, Advocate Anton Katz, argued that her “disguised extradition” in the form of deportation was unlawful, asserting that she could not consent to an act of illegality.
Katz pointed out that High Court Judge Phillip Loubser had concluded that Magudumana’s return to South Africa was, in fact, an extradition with no formal process rather than a deportation.
The lawyer argued that this meant both South African and Tanzanian officials acted unlawfully in bringing Magudumana back to the country, bypassing the Southern African Development Community (SADC) protocol on extradition.
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He further contended that, based on Loubser’s ruling, there was “collusion as a matter of fact”, driven by the South African government’s desire to quickly secure Magudumana and Bester’s return.
“They know, as we all know, extradition takes time,” Katz said.
“The decision by the South Africans to seek the extradition of an individual does not lie with any country, it lies only with South Africa.
“They did not need permission or direction from Tanzania to follow the lawful extradition procedures provided for by the protocol.
“They were required to do so because that is the lawful mechanism for the return of sought persons to South Africa. Extradition disguised as a deportation is not a lawful mechanism,” the advocate continued.
Katz emphasised that if Magudumana had been deported, there would have been no need for an agreement between the two countries; Tanzania could have simply deported her.
Magudumana had previously argued that her arrest and deportation from Tanzania to South Africa amounted to an unlawful abduction, as no Tanzanian court had deemed her an illegal immigrant.
Furthermore, Katz questioned the conclusion that Magudumana had consented to her return to South Africa.
“On the same day, a notice of prohibition was signed, and she says it’s not contested, that she saw it for the first time, that she saw the prohibited immigrants’ notice for the first time when it was filed as part of the papers in this case.
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“There’s no suggestion that it was given to her, that she saw it, that she knew her rights. There’s none of those issues.”
He also stated that the Department of Home Affairs and the South African Police Service (Saps) must clarify the grounds for their officials’ presence in Tanzania during Magudumana’s arrest.
“On what legal basis were they there?”
Meanwhile, Advocate Neil Snellenburg, representing the Department of Home Affairs, Saps, and the Director of Public Prosecutions (DPP) in the Free State, argued that Magudumana had failed to present a valid case.
“There is no merit in any argument to say they coerced or used stealth to reel the applicant to get on that plane. There’s no conduct whatsoever on the part of the Saps,” he said.
Snellenburg stated that it had not been disputed that Magudumana expressed a desire to return home to her children.
READ MORE: Officials who delayed reporting Bester’s escape handed final written warnings
He also pointed out that the police presence was justified due to Bester’s status as a convicted rapist and murderer.
“That precaution is quite reasonable to take,” the lawyer argued.
Judgment in the case was reserved.
Magudumana and Thabo Bester were apprehended in Arusha, Tanzania in April 2023 after fleeing South Africa.
Bester had escaped from the Mangaung Correctional Centre in Bloemfontein on 3 May 2022, after faking his death in a staged jail cell fire.
Katlego Bareng’s body was found in the prison cell.
At least 12 people, including Magudumana and Bester, were initially arrested and charged.
However, the state withdrew charges against former G4S employees, Natasha Jansen, Moeketsi Ramolula and Thabang Mier.
The trial will begin in February 2025.
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