Dr Nandipha Magudumana to hear appeal fate today

The Free State High Court in Bloemfontein is expected to hand down judgment on Tuesday in Dr Nandipha Magudumana’s application for leave to appeal against the dismissal of her urgent application last month.

Lawyers representing the girlfriend of convicted rapist and murderer Thabo Bester told the court last week she could not consent to an illegality.

They were in court to try and secure leave to appeal and set aside the ruling handed down in June, that while Magudumana’s return to South Africa from Tanzania was an extradition without due proces, she consented to it.

Bester and Magadumana were brought back to South Africa to face charges of fraud, corruption, arson, violation of a body and defeating the ends of justice in April.

Magudumana labelled her deportation as a “disguised extradition” orchestrated by South African and Tanzanian authorities.

Consent

During court proceedings last week Friday, advocate Kessler Perumalsamy rejected the state’s argument that Nandipha Magadumana 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.

ALSO READ: ‘SCA will reach a different conclusion’: Lawyer denies Dr Nandipha consented to her arrest in Tanzania

He also argued that there was no mention of the words “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’.”

“We submit that you can never consent to an illegality and that’s because all Constitutional inquiries are not subjective in nature.

“Consent, in our view, is inherently subjective. It requires the person giving it to say, ‘I’m okay with unconstitutional conduct’. That, in our view, is inconsistent with Section 2 of the Constitution,” Perumalsamy argued.

Arrest

Magudumana and Bester were arrested in April, about 10km out of Arusha in Tanzania, after fleeing the hotel they were staying in.

They were arrested alongside a Mozambican national, who was believed to have been the driver assisting them in border crossings during their escape.

ALSO READ: Tanzanian Police probe how Thabo Bester and Nandipha slipped through checkpoint