Dr Nandipha Magudumana's application for leave to appeal a judgment which dismissed her application to have her arrest in Tanzania declared unlawful is being heard in the Free State High Court. Picture: Phill Magakoe/AFP
Dr Nandipha Magudumana‘s lawyers on Friday disputed the suggestion that their client consented to her deportation to South Africa.
Her application for leave to appeal is currently being heard in the Free State High Court.
Magudumana is seeking to set aside a previous judgment which dismissed her application to have her arrest in Tanzania declared unlawful.
WATCH: Police explain why Nandipha Magudumana was not chained outside court
The medical doctor, alongside her partner Thabo Bester, who is a convicted rapist and murderer, were brought back to South Africa to face charges of fraud, corruption, arson, violation of a body and defeating the ends of justice on 12 April.
She later labelled her deportation as a “disguised extradition” orchestrated by South African and Tanzanian authorities.
During court proceedings on Friday, advocate Kessler Perumalsamy rejected the state’s argument that his client consented to return to South Africa “to see her children”, saying such an agreement should have been in writing.
Perumalsamy argued that Magudumana cannot be compelled to be brought back to the country although she acknowledged that there was “probable cause” why South African authorities sought to deport her.
“We submit that in determining whether there are reasonable prospects of success, the SCA [Supreme Court of Appeal] will reach a different conclusion on the question of consent,” he said.
The advocate highlighted that there was no mention of the word consent, waiver or agreement in the answering affidavit of the South African Police Service (Saps), but instead “two passing remarks ‘I would like to return to my children’ and ‘offered no resistance’.”
“Is that informed consent? Was she informed of the treaty between South Africa and Tanzania on extradition? What was she consenting to? Was Dr Magudumana consenting to disguised extradition? To whom was the consent made? When was the consent made?” Perumalsamy asked.
He further pointed out that the Department of Home Affairs unlawfully exercised its powers by using South African legislation to arrest Magudumana in a foreign country.
“If you have conflicting views by the respondents [Home Affairs and Saps] then how can there ever be unequivocal consent?
“One party says I exercised an arrest power in a foreign country and another party says no, no there was consent… the respondents themselves are confused as to what the correct route was and we submit that there can never be clear unequivocal consent,” said the advocate.
“The Saps with respect must choose a lane and stick with it. They can’t have it both ways… they can’t have consent and [also] say we didn’t play a role at all.
“You can never consent to an illegality. It requires someone to say I am okay with unconstitutional conduct.”
Meanwhile, Magudumana is currently held in the hospital wing of the Bizzah Makhate Correctional Centre in Kroonstad, according to the Correctional Services national commissioner, Makgothi Thobakgale.
Thobakgale had to refute claims of preferential treatment towards Magudumana following his visit to the prison for a routine inspection on Thursday.
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He said she was detained in the hospital section because she was a high-profile offender.
The commissioner added that the Department of Correctional Services was monitoring Magudumana to ensure that she doesn’t come into contact with contrabands or with any item that would jeopardise ongoing investigations.
Thobakgale also visited Bester’s prison cell at the Kgosi Mampuru II Correctional Centre.
Bester refused to speak to the media and has filed several complaints about him being tortured in prison.
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