SCA decides to hear Magudumana's appeal on her extradition to SA

The Supreme Court of Appeal decided on Friday it will hear Dr Nandipha Magudumana’s appeal against the judgment that found that South African courts retain criminal jurisdiction over her.

If she succeeds in her appeal, it could mean she would escape a criminal trial in South Africa.

However, no date has been set for the hearing of the appeal, and it is unlikely to be soon.

In June, the Free State High Court found though Magudumana’s removal to South Africa, along with convicted rapist and murderer Thabo Bester, from Tanzania was a “disguised extradition”, which was unconstitutional, she had consented to her return. Her consent meant South Africa’s criminal courts retained jurisdiction over her.

In July, the high court refused her application for leave to appeal, saying an appeal had no reasonable prospects of success and there were no other compelling reasons to grant leave to appeal.

She then petitioned the SCA. The decision of the appeal court to entertain the appeal suggests it does not agree that no other court would find differently or that there are no other compelling reasons to entertain her appeal.

Magudumana’s lawyers had argued that her case raised new and important legal questions that should be settled by an appeal court.

One of these is whether a person can consent to unconstitutional conduct by the state.

“An appellate court has not yet had the opportunity to consider whether consent may be given to unconstitutional conduct,” said her counsel Anton Katz SC, in written legal submissions to the Free State High Court.

He said there was already a high court judgment from the Gauteng division that said as much. Katz argued judge Phillip Loubser’s June decision was in conflict with that judgment.

There are also two other judgments, of the appellate division (now the Supreme Court of Appeal), which said consent can be provided to a disguised extradition — but “neither case considered the impact of the constitution on the nature of consent to an illegality”.

But delivering his judgment refusing leave to appeal, Loubser said when someone went to court asking it to declare conduct of the state unconstitutional, it had to be specifically pleaded in their notice of motion.

But there was no mention in her notice of motion of relief sought on a constitutional basis, the judge 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 South Africa unlawful. Also, her case was directed at the conduct of the police and not the department of home affairs, said the judge.

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

“The question of whether a person can waive a fundamental constitutional right therefore falls away,” Loubser said.

The judge also rejected Magudumana’s argument that any consent for her removal from Tanzania had to be in writing and unequivocal for it to be lawful. 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 her case, he said.

Here, there were other judgments, binding on him, which said if someone consented to their return to South Africa, South African criminal courts would retain jurisdiction. One judgment specifically said such a return did not breach any fundamental rights, Loubser said.

Friday's order means Magudumana’s team must still file a record of appeal to the SCA and then there will be further court papers exchanged.

In the normal course, this would likely mean a hearing only in the second half of next year — unless her lawyers seek an urgent date.

Magudumana remains in custody after she was denied bail by the Bloemfontein magistrate’s court in September. She is facing counts with several accused, including Bester, related to his escape from prison last year.

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