Nandipha Magudumana's bid for bail was denied on Monday. Photo: Twitter/@AdvoBarryRoux
The defence for Nandipha Magudumana, the girlfriend of convicted rapist and murderer Thabo Bester, has argued that she has no pending cases against her and is not a flight risk.
In a bid to get Magudumana bail, her legal counsel also argued that she is facing a schedule 1 rather than a schedule 5 offence.
A schedule 5 offence can include treason, murder, attempted murder, indecent assault, rape, and drug-related crimes.
Magudumana appeared in the Bloemfontein Magistrate’s Court on Wednesday for her bail application related to her alleged role in the escape of Bester from the Mangaung Correctional Centre.
In May, she reserved her right to bail pending the outcome of an application to have her arrest and extradition from Tanzania declared unlawful.
Magudumana’s lawyer Frans Dlamini started with addressing the issue of the schedule offence.
Dlamini said the state has not provided evidence that her bid for bail is a schedule 5 application.
He said after hearing the submissions of the state, they are convinced they are dealing with a different schedule.
“Why is the state bringing allegations on a charge sheet that has no evidence to support the charge sheet?”
Dlamini said the state is bringing evidence through a charge sheet, adding that the affidavit from Captain Tieho Jobo Flyman, the Investigating Officer in the Thabo Bester prison escape case, does not make any mention of R2.5 million.
Reading out one of the counts against Magudumana, Dlamini said what the state alleges is not what Flyman states in is affidavit.
“There is no evidence of R2.5 million or R100 000 as per requirements for a schedule 5. The applicant is not charged on count 4.”
ALSO READ: WATCH: Nandipha Magudumana likely to flee SA if granted bail – State
Dlamini challenged the notion that the state has overwhelming evidence against Magudumana.
“Where is the overwhelming case? The state was actually trying to decorate charges in order to make it difficult for the applicant to be granted bail. It’s clear from these charges and the evidence of Colonel Flyman there is no evidence of R2.5 million and of any amount of R100 000, there is none.”
Dlamini said the first five pages of the state’s affidavit was a “good and nice story”.
“It’s a very good and nice story about a summary of facts which does not link the applicant to any offence whatsoever in relation to the count before you. So, I submit that this is not a schedule 5, it’s a schedule 1 offence and therefore the onus of proof is not on the applicant, but it is on the state.”
Dlamini read a count where the state said Magudumana was harbouring Bester, as an escaped prisoner, in Tanzania.
“Can you really charge someone for an offence committed in Tanzania? In Tanzania? I have never seen a charge like this.”
Dlamini said Magudumana had told the court that she was taken out of the country against her will on 17 March.
“The warrant of arrest was not issued before that particular date.”
Dlamini also questioned how Magudumana could have known that the police were looking for her.
“How would she have known that the police were looking for her. She is a well-known medical doctor. How would anyone looking for her not find her? The submission that she evaded the police for 11 months cannot be true.
“There are also issues of the applicant not paying fees to the HPCSA. What does that have to do with [her being a] flight risk?” Dlamini asked.
Dlamini also denied that Magudumana was in possession of two passports when she was arrested.
“We deny it. Where is the evidence to that effect? The arrest happened in Tanzania. Where was Captain Flyman? Where is the proof?”
He argued that since Magudumuna’s passport was confiscated she cannot be a flight risk.
“The passport also being used 23 times outside the country doesn’t say anything. She came back to SA. Why would she not stand trial?”
Dlamini mentioned the six other fraud cases that Magudumana was implicated in and registered in 2023.
“If one looks at the case numbers, April 2023, March 2023 – we are sitting at the end of August. The applicant has not been approached by a single police officer on these cases. Where are they?”
Dlamini also argued that Magudumana has not been arrested or charged on these cases.
“In fact, one cannot even take these as pending cases.”
Dlamini also compared Flyman’s affidavit and the charge sheet, pointing out what he said are irregularities and failures to disclose the evidence the state claims to have against Magudumana.
“The nature of evidence the state relies on is of a poor nature. It is unsubstantiated. They make reference to so many people. They never even obtained their affidavits, there is not even one confirmatory affidavit.”
ALSO READ: WATCH: Nandipha Magudumana breaks down in court, claims she was ‘forced to leave SA’
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