The Supreme Court of Appeal has thrown Dr Nandipha Magudumana a lifeline.
On Friday the court granted Magudumana’s request for leave to appeal the decision of the Bloemfontein High Court this week to dismiss her application to declare her repatriation from Tanzania unlawful.
She had argued that there were “compelling reasons” for the high court to grant her leave to appeal.
In June, the Bloemfontein High Court dismissed Magudumana’s application to declare her arrest and apprehension in Tanzania unconstitutional and unlawful.
Judge Phillip Loubser found that her arrest and return to South Africa was a disguised extradition, as she had argued, but that she had consented to it, giving the South African criminal courts jurisdiction.
In her appeal plea, Magudumana argued whether consent may be given to an unconstitutional and unlawful act has not been considered by both the Supreme Court of Appeal and the Constitutional Court.
She further stated in the notice that the government had not made a proper case in their affidavits that she had consented, saying only that she did not “verbally, or otherwise, offer any resistance or protest”, and that she “informed all and sundry that she wanted to return to South Africa to her children”.
On Friday afternoon the Supreme Court of Appeal said about Magudumana’s request: “Leave to appeal is granted to the Supreme Court of Appeal. The costs order of the court a quo in dismissing the application for leave to appeal is set aside AND the costs of the application for leave to appeal in this court and the court a quo are costs in the appeal. If the applicant does not proceed with the appeal, the applicant is to pay these costs.”
Magudumana was arrested in Tanzania alongside Thabo Bester, a convicted rapist and killer who had escaped from the Mangaung Correctional Centre.
They were apprehended near the Kenyan border in April of this year.
If Magudumana is successful in getting her arrest and extradition to South Africa scrapped, it could see her removed from the list of suspects in the ongoing court case against Thabo Bester, according to law expert, Elton Hart.