Dr Nandipha Magudumana’s court challenge against her arrest in Tanzania fails

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Magistrate Motlholo Khabisi takes notes as Dr Nandipha Magudumana appears virtually at the Bloemfontein Magistrate's Court on 16 May 2023. PHOTO: Phill Magakoe / AFP

Dr Nandipha Magudumana suffered a blow in court when her urgent application challenging her “unlawful” arrest in Tanzania was dismissed.

The judgment was handed down by the Free State High Court in Bloemfontein on Monday.

Magudumana, who is currently detained at the Bizzah Makhate Correctional Centre in Kroonstad, had legally challenged her detention following her arrest in the city of Arusha on 6 April, arguing that she was “abducted” by the police.

She maintained, in her court papers, that her deportation was a “disguised extradition” orchestrated by South African and Tanzanian authorities.

Her application was opposed by Home Affairs Minister Aaron Motsoaledi, the National Prosecuting Authority (NPA), and the South African Police Service (Saps).

Urgent application
During the court proceedings on Monday, Judge Phillip Loubser addressed the urgency of her application.

“In the present application, it appears from the papers before me that the applicant has been in South Africa since 13 April after she was arrested in Tanzania.

“From 14 April onwards, she was in consulted with her legal representatives and has since appeared in the magistrate’s court where she has the right to apply for bail. This application was only launched on 19 May,” the judge said.

Loubser said Magudumana did not met criteria for launching the application on an urgent basis.

According to the judge, she also failed give reasons why she waited for some time to launch the litigation.

However, he ruled that the matter was urgent “despite short comings” of her application.

“This application is rendered different by the fact that it was launched by a person who finds her herself in detention and who disputes the legality of her detention on different grounds.”

Magudumana, alongside her boyfriend – convicted rapist and murderer Thabo Bester – was 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.

‘Disguised extradition’
Loubser also rejected Magudumana’s argument that her deportation from Tanzania was a misrepresented as an extradition.

“She had already alleged in her founding affidavit that no documentation existed to show that there was an extradition.

“She also mentioned that none of the procedures for making an extradition request had been followed so it therefore appears the reference to a disguised extradition in the replying affidavit was nothing more than the use of refined terminology to say the same that she had already intimated in her founding affidavit. The objection is this respect cannot succeed.”

On the media statements made by government officials that Magudumuna referred to in her replying affidavit, Loubser highlighted that these statements were made in April and that they were not included in her founding affidavit, therefore, this argument was dismissed.

“The same applies to the new evidence that the applicant had instructed a lawyer in Tanzania to challenge her detention there before she was brought back to South Africa,” the judge continued.

Deportation
On whether the authorities unlawfully brought Magudumana to the country, the judge outlined the difference between deportation and extradition.

He emphasised there was an Southern African Development Community (SADC) extradition protocol that would have allowed Magudumana to surrender herself lawfully to South African authorities.

“On the basis of the other affidavits by the respondents, the court has to accept that the decision to deport was taken by the Tanzanian authorities and nobody else.

Loubser also pointed out that the contradictions in the evidence provided by Neo Moroeng, the third secretary in the SA High Commission in Tanzania.

Moroeng had claimed that Magudumana was declared a prohibited immigrant in Tanzania and was deported, but also stated that there was an “agreement” that she would be deported.

“It can’t be that on the one hand Tanzania decided to deport and then on the other hand an agreement was reached to deport.”

The judge further rejected the state’s argument that Magudumana should challenge her “deportation” with the courts in Tanzanian.

“It is patently clear that the respondents willingly participated in the handing over at the airport believing that such handing over was done in terms of international law and in terms of the law in Tanzania. They didn’t realise this hand over was an extradition not a deportation”

Loubser dismissed Magudumuna’s bid to declare her arrest and subsequent detention unlawful with costs.

He had explained that Magudumana was aware of the charges she faced in South Africa when she consented to return to South Africa because she wanted to see her children.

“I find the application cannot succeed.”

The Citizen/ Molefe Seeletsa