Pretoria -The Bloemfontein High Court ruled in favour of the government and dismissed Dr Nandipha Magudumana’s application where she wanted the court to declare her arrest and detention wrong and unlawful.
Even thought the judgment is in favour of the South African government (police and Home Affairs), it must be noted that Judge Phillip Loubser highlighted a couple of errors which were made by officials when bringing Magudumana back in the country.
Loubser distinguished between deportation, which was the removal of an unwanted individual from a nation, and extradition, which typically involved the transfer of a person who had been found guilty or accused of a crime.
He explained that deportation is usually unilateral, and extradition usually occurs between nations.
Loubser said it was accepted that the decision to deport Magudumana back to her country was taken by Tanzanian authorities, but the most important question is whether South Africa and Tanzania conspired in the deportation.
1. Inconsistencies provided by the SA High Commission in Tanzania
Loubser said he could not rely on the affidavit from an official in the office of the South African High Commission in Tanzania as it was riddled with inconsistencies.
He mentioned the contradictions in the evidence provided by Neo Moroeng, a secretary in the high commission in Tanzania.
According evidence provided by Moroeng, Magudumana was allegedly deported from Tanzania after being deemed a forbidden immigrant in the country, however, Moroeng also claimed that there was a "agreement" that she would be sent back.
“It cannot be that on the one hand the official says a decision was made to deport them and on the other hand say there is an agreement in the two countries,” Loubser said.
2. SA extradited Magudumana and disguised it as deportation
Loubser said the South African delegation knew that when the Tanzanian government was handing over Magudumana, it would be for purposes of her prosecution, they were extraditing Magudumana and not deporting her.
3. Magudumana extradited without following process
Loubser said when Magudumana was handed over to SA officials, the handing over was, in fact, an extradition without any process and not a deportation.
Why Magudumana lost the case
Loubser said Magudumana willingly accepted her transportation back to South Africa.
“She consented to her removal because she wanted to be with her children,” Loubser
To support his decision, Loubser referred to a case law, determined by the Supreme Court of Appeal, which held that there is no violation of a person's fundamental human rights or international law if they consent to be transported from a foreign jurisdiction for criminal investigation.
Magudumana is being held at Bizzah Makhate Correctional Centre in Kroonstad.
She is facing charges of fraud, violating dead bodies and aiding convicted murder and rapist Thabo Bester escape from Mangaung prison in May 2022.