Dr Nandipha’s court bid is “trial by ambush” argues state lawyer

From left to right: advocates Anton Katz (Senior Counsel), Kessler Perumalsamy, Stanley Reinders and Neil Snellenberg in the Free State High Court. Photo: Becker Semela

• Nandipha Magudumana’s bid to have her arrest declared unlawful was heard in the Free State High Court on Thursday.
• Magudumana’s counsel, Advocate Anton Katz, argued that Magudumana’s return to South Africa was “extradition disguised as deportation”.
• The police, NPA and Department of Home Affairs argued that Magudumana lied in her founding affidavit and made a new case based on their replying affidavits.

The Free State High Court on Thursday heard Nandipha Magudumana’s urgent application against the government in which she wants the court to declare her detention in Tanzania and return to South Africa unlawful.

Judge Phillip Loubser is expected to hand down judgment on Monday, 5 June.

Magudumana was arrested in Tanzania in April 2023 with convicted rapist and murderer Thabo Bester. She is currently facing charges of fraud, violating dead bodies and aiding Bester’s escape from Mangaung prison in May 2022.

She is now asking the court to declare her “apprehension, arrest, and abduction in Tanzania” to be “wrongful and unlawful”; her arraignment before the Bloemfontein Magistrates Court “a nullity”’; the warrants for her arrest “null and void”; and that she is entitled to be released from prison.

Respondents included the South African Police Service (SAPS) and National Prosecuting Authority (NPA). The Department of Home Affairs (DHA) was later added as a respondent.

The version of events in Magudumana’s founding affidavit is different from the government’s. Magudumana said she was blindfolded and handcuffed in Tanzania, but the South African government disputes this.

Magudumana said she was unlawfully handed over to South African authorities in Tanzania, which amounts to abduction. But the South African authorities say that Magudumana’s return to South Africa was a lawful deportation.

Magudumana was represented by advocate Anton Katz, an international law practitioner who is also leading the legal team in the Gupta extradition case. Katz argued that the onus falls on the respondents to prove that Magudumana’s detention was lawful.

Katz said that the court must decide the case based on what the respondents say. “Whatever the applicant says is context, no more,” Katz said. He argued that the court should look at the respondents’ versions of events and decide whether or not their actions were lawful.

Focusing on the respondent’s version of events, Katz argued that Magudumana was unlawfully handed over to South African officials in Tanzania. The fact that there was an agreement between the South African and Tanzanian governments means that it was not simply a deportation, but an extradition, Katz said.

But, Katz said, if the court did not agree that Magudumana’s deportation was in fact a disguised extradition, then it would have to consider the basis on which the South African authorities were in Tanzania.

Magudumana and Bester had been arrested by Tanzanian authorities because they were in the country illegally.

A few days later, delegates from the Department of Home Affairs, SAPS, and the NPA travelled to Tanzania to bring them back. Katz argued that South African law does not permit them to do so.

The Tanzanian government had issued a notice that Magudumana should leave the country within three days. Katz said Magudumana was never given those three days and was instead immediately handed over to South African authorities and put on a plane to Lanseria airport, where she was arrested by the police.

Advocate Neil Snellenberg, represents the Director of Public Prosecutions Free State (from the NPA), the Minister of Police, and SAPS Captain Tieho Flyman, who is the investigating officer in the Bester case.

Snellenberg said that Magudumana’s application is not urgent. Magudumana had spent almost a month in detention before deciding to bring this matter to court. He said that Magudumana did not comply with the established practices pertaining to urgent applications.

He said that Magudumana’s arguments in court were mostly based on the answering affidavits of the respondents, which were “drawn in urgency … under undue pressure”.

He said that Magudumana had failed to make a case in her founding affidavit. “It’s a matter of the applicant abusing the process and she wants to get mileage from it,” he said.

Snellenberg said Magudumana had lied in her founding affidavit and that was why she was basing her case on the respondents’ answering affidavits.

“It is trite in law that the respondent is only called upon to answer the case that is made against him,” said Snellenberg. He said that the case made by Magudumana in her founding affidavit was “utterly untruthful”, and that was the case that the respondents were invited to answer. The “disguised extradition” case was not made in the founding affidavit, Snellenberg said.

Snellenberg argued that the South African authorities took their guidance from the Tanzanian government on how to handle the situation. He said that the context was also important: there were armed men present on the plane that brought Magudumana and Bester back because Bester was a convicted rapist and murderer who had escaped from prison.

He also said that Magudumana had told the Tanzanian authorities that she wanted to go home to South Africa and that she never objected to getting on the plane.

“Are you saying … she was only hitching a ride?” Judge Loubser asked.

Snellenberg said, “In the event that this court is inclined to hear this matter as one of urgency, it is respectfully submitted that this application be dismissed with costs by reason of, firstly, the material dispute of facts highlighted above. Secondly, the fact that [Magudumana] has woefully failed to prove the alleged arrest an abduction by the South African Police Services in Tanzania.”

Advocate Joubert Zietsman, for the Department of Home Affairs, argued that the Tanzanian government had ordered Magudumana to leave the country “through escort” and that the Tanzanian authorities had decided that Magudumana should be deported to South Africa.

“If it stands firm that the decision was made by Tanzania to deport, then it was going to be through an escort, not what the applicant decides and that it will be back to South Africa. The applicant cannot take issue with any of those,” Zietsman said.

In response, Katz said that there appeared to be an inconsistency in the versions of the different state departments: Snellenberg had argued that Magudumana consented to get onto the plane, while Zietsman argued that she was put there by Tanzanian authorities. “The respondents can’t have it both ways,” Katz said.

Judge Loubser said: “This is probably the first case in my life where the applicant only relies on the respondents’ version, while the respondents only rely on the applicant’s version.”

Katz laughed and said, “It is unusual, but that’s what happens when you have a government that plays possum when it comes to the liberty of an individual.” Katz implored the court to rule that the South African government’s conduct in Tanzania was unlawful.

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