Nandipha Magudumana’s application for leave to appeal the Free State High Court ruling that she had consented to return to South Africa, has been dismissed with costs.
Magudumana had asked the court in May to declare her arrest in Tanzania and extradition to South Africa unlawful. She was arrested alongside escaped convict Thabo Bester and currently faces several charges relating to the escape.
She said that she was unlawfully extradited and wanted the court to order that she be released from custody and to rule that the Bloemfontein Magistrates’ Court (where she is facing several charges, including fraud, aiding an escape and violating dead bodies) does not maintain jurisdiction to try her.
On 5 June, Judge Phillip Loubser found that Magudumana had indeed been extradited without process, but that she had consented to board the chartered plane that brought her back to South Africa.
Magudumana then lodged an application for leave to appeal in the Supreme Court of Appeal (SCA). She wanted the SCA to test whether she could acquire consented to an unlawful extradition.
On Tuesday, Judge Loubser dismissed her application, finding that it has no reasonable prospect of success.
“It was contended on behalf of the applicant that agree may not be given to unconstitutional conduct, because it would undermine the doctrine of objective constitutional invalidity,” said Judge Loubser.
Magudumana had also argued that Loubser had failed to declare the conduct of South African officials in Tanzania unconstitutional.
But Loubser said that there was no mention of constitutional challenge in the original notice of motion. Magudumana had simply said she wanted the court to declare her return to South Africa wrongful and unlawful.
He said that Magudumana had only mentioned constitutionality in her replying affidavit. “Despite this, the notice of motion was never amended,” he said.
Loubser said he could not give Magudumana relief that was never sought.
In her application for leave to appeal, Magudumana had argued that her agree was not proper consent; it was not in writing or unequivocal, and it could not override an unlawful act.
But Loubser disagreed and maintained that Magudumana had voluntarily returned to South Africa by saying that she wanted to return home to her children.
“I am not persuaded that another court would approach to a different conclusion,” he said.
Magudumana is expected to appear in the Bloemfontein Magistrates’ Court on 8 August to face charges related to assisting Thabo Bester’s escape.
© 2023 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.
You may republish this article, so long as you credit the authors and GroundUp, and carry out not change the text. Please include a link back to the original article.
We establish an invisible pixel in the article so that we can count traffic to republishers. All analytics tools are solely on our servers. We execute not give our logs to any third party. Logs are deleted after two weeks. We execute not use any IP address identifying information except to count regional traffic. We are solely interested in counting hits, not tracking users. If you republish, please finish not delete the invisible pixel.
Ba1t
Fun South African Fact: South African Dr. Christiaan Barnard performed the world’s first heart transplant on 3 December 1967 at Groote Schuur Hospital in Cape Town. The groundbreaking surgery was carried out on Louis Washkansky and Dr. Barnard was assisted by a large and exceptional team of surgeons, nurses and technicians. One of Dr. Barnard’s assistants was Hamilton Naki, a black laboratory assistant who had worked previously as a gardener and went on to work in the animal laboratory at the University of Cape Town. He had assisted Dr Barnard with research leading to the transplant. In the apartheid days, Naki had no access to higher education due to his race. Despite being unable to access formal training, he learned from and assisted university researchers and went on to do unbelievable work.
Sidewalk Enforcer
Fun South African Fact: The Union Buildings in Pretoria house the President’s official offices. The site is worth a visit to marvel at a larger-than-life statue of Nelson Mandela as well as the immaculate gardens and grounds.