Africa-Press – South-Africa. The issue of consent was a matter of contention on Friday morning in the Free State High Court in Bloemfontein, where Dr Nandipha Magudumana’s application for leave to appeal was heard.
Last month, the same court dismissed Magudumana’s appeal for her arrest and detention to be declared unlawful and wrongful.
Although Judge Phillip Loubser said it was evident the process used to bring Magudumana back to the country was an extradition without due process and not deportation, she was well aware of the charges she would face when she arrived back in South Africa from Tanzania.
Loubser said Magudumana had consented to her removal because she wanted to be with her children. During arguments, Magudumana’s lawyer, advocate Kessler Perumalsamy, said there were grounds for her case to be heard by the Supreme Court of Appeal.
Perumalsamy maintained that one could never consent to illegality, adding that it required someone to say: “I am okay with unconstitutional conduct.”
He said that if Magudumana had consented to her return to the country, it should have been in writing.
He asked:
Magudumana was arrested in Tanzania in April with her escaped prisoner boyfriend, Thabo Bester. She has two daughters from a previous marriage.
Arguing on behalf of the police and National Prosecuting Authority, advocate Neil Snellenburg SC poked holes in Magudumana’s defence.
He pointed out that she had initially alleged to have been abducted and blindfolded, but had now changed her tune to say she had never consented to her removal from Tanzania.
“This is an argument Magudumana wants to profit from. They’re looking for compelling reasons because they don’t have prospects of success in the SCA,” he said.
“There is no way Magudumana will convince any court that she abandoned some right to be stuck in Tanzania.
“According to the police, she told everyone willing to listen that she wanted to go home. Should they have left her in Tanzania when she wanted to come home?”
Snellenburg said Magudumana’s leave to appeal should be dismissed.
Advocate Louis Pohl SC, for the Department of Home Affairs, said they would abide by whatever the court ordered.
Judgment has been reserved and will be delivered on 18 July.
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