High court refuses appeal bid by Nandipha Magudumana

The Free State High Court has refused Dr Nandipha Magudumana leave to appeal after finding that SA criminal courts retain criminal jurisdiction over her.

Magudumana is the alleged main accomplice of convicted murderer and rapist convict Thabo Bester who escaped from the Mangaung Correctional Centre last year. 

In June judge Phillip Loubser found that though Magudumana’s removal to SA from Tanzania was a “disguised extradition”, which was unconstitutional, she had consented to her return. Her consent meant SA’s criminal courts retained jurisdiction over her. 

Loubser said an appeal had no reasonable prospects of success and there were no other compelling reasons to grant leave to appeal. 

The judge said Magudumana’s counsel had argued his order was wrong because he did not declare the disguised extradition to be unconstitutional. But he said “curiously enough, there was no mention in the notice of motion of relief sought on a constitutional basis”. 

Loubser said the order Magudumana had sought from the court, as set out in her notice of motion, was to declare her arrest and transportation to SA unlawful. Also, her case was directed at the conduct of the police and not the department of home affairs.

“Only in her replying affidavit did the applicant contend that the extradition disguised as a deportation is inconsistent with the constitution. Despite this, the notice of motion was not amended,” said Loubser. 

He referred to previous judgments of the Supreme Court of Appeal (SCA) and the Constitutional Court, which said that where a declaration of constitutional invalidity was sought an applicant must “properly and specifically” place the issue before the court.

“The question of whether a person can waive a fundamental constitutional right therefore falls away,” Loubser said, referring to the argument by Magudumana’s lawyers that his judgment raised a new question of law: whether a person can consent to a breach of their constitutional rights by the state.

“The facts of the matter do not pave the way for such relief,” Loubser said

He also rejected Magudumana’s argument that any consent to her removal from Tanzania had to be in writing and unequivocal for it to be lawful.

Her lawyers had referred to a judgment from the SCA about what was required for proper consent when it came to an extradition and another high court judgment that a person cannot consent to unconstitutional conduct by the state. They argued these judgments conflicted with Loubser’s and were a good reason to grant leave to appeal. 

Loubser said the government had never claimed she was consenting to being extradited. All the government claimed was that she had said she wanted to return home to her children.

“That was the true nature of her consent,” said the judge. 

The cases referred to by Magudumana’s lawyers were therefore distinguishable from the facts in this case, he said. Here, there were other judgments, binding on him, which said if someone consented to their return to SA, the country's criminal courts would retain jurisdiction. One such judgment specifically said such a return did not breach any fundamental rights, Loubser said. 

“I am therefore not persuaded that another court would reach a different decision or that there are other compelling reasons why the matter should proceed on appeal,” the judge said. 

Magudumana may still petition the SCA to appeal.