Dr Nandipha Magudumana’s defence attorney has fired back at the State during her bid to secure bail, vehemently disputing that she was a flight risk and insisting that her lover, convicted Facebook rapist and murderer Thabo Bester, had threatened her, forced her into a car, and kidnapped her during his escape.
The defence says the State, which has portrayed that it had overwhelming evidence against Magudumana, had no evidence against her, and that she should be released on bail into the care of her friend, Dr Michelle Chibaya, who submitted an affidavit saying she would house Magudumana at her Douglasdale house.
The bail application, which was set out for two days this week in the Bloemfontein Magistrate's Court, has been postponed until September 4, 2023.
Magudumana’s defence counsel, advocate Frans Dlamini, sought to poke holes in the State's submission, which opposed bail and relied heavily on an affidavit of Lieutenant Colonel Tieho Flyman, an investigating officer of the SA Police Services (SAPS) who is from the Free State Organised Crime division.
Magudumana is facing charges of fraud, corruption, violating a body, arson, assisting an inmate to escape, harbouring and concealing an escaped prisoner and defeating the ends of justice.
Dlamini said Magudumana was not a flight risk and had demonstrably left the country and returned 23 times, as submitted by the State, which has confiscated her passport since her arrest in April.
"We have reasons to believe this is a Schedule 1 matter," said Dlamini, who said it was incorrect that Magudumana had committed Schedule 5 offences, which come with stricter criteria for bail.
"The State’s case is not as it is portrayed to be ... We have given a version about how Magudumana left South Africa. The State has presented no version to dispute what Magudumana has said in her affidavit.
"Her version is unchallenged, and there is nothing to the contrary," said Dlamini.
In an affidavit filed to the court, Magudumana claimed that Bester had threatened her and forced her into the car before their escape.
The State has denied this, saying Magudumana "eloped" and "deserted" her two children in order to flee with her convicted rapist and murderer boyfriend, Bester.
Dlamini, responding to an assertion by the State that Magudumana had not opened kidnapping charges against Bester, said: "It is an individual’s choice and decision to decide on how you forgive and deal with your past. It is a matter that will be dealt with at a later stage".
Dlamini also intricately poked holes in the State's submission against Magudumana, charging that out of the 12 accused, only two remained behind bars and there had been no mayhem or revolts in the community as the State contended.
Dlamini said only the fraud and corruption charges related to Magudumana committing a Schedule 5 offence, but even in those, the State had failed to present any evidence to the court.
Dlamini said in respect of fraud and corruption, there was a R500,000 threshold that qualified it as a Schedule 5 offence, and for this, he said, the State had failed to show cause.
"The State says that on or about April 14, 2023, Magudumana offered one of the accused R2.5 million, and she paid R40,000.
"On the basis of the R2.5 million, that can be a Schedule 5 offence, but the charge sheet alone, without any evidence, is not evidence. There must be evidence on record to convince the court.
"Where is the evidence to show that Count 3 (corruption) is a Schedule 5 offence?
"The charge sheet talks of R40,000, but the evidence of the State talks of R85,000," said Dlamini.
Dlamini said Flyman’s affidavit was "silent on the R2.5 million" fraud and, therefore, the State has no evidence to support the allegations in the charge sheet.
In terms of claiming a body at the government mortuary, Dlamini said the State claimed it had fingerprint evidence that Magudumana had collected the body, but he said the State did not tell or show the court that Magudumana's fingerprints had been matched.
Dlamini also took issue with the fact that during her second appearance in the Bloemfontein Magistrate's Court, Magudumana was forced to reveal herself at the insistence of the State.
"You are a court of record; the record before you will reflect no ID parade where she had to be identified.
"The court will remember that on the second appearance of the applicant, the court ordered her to expose her face.
"The court did that as a remark of the state. The court did not stop there. It said to remove everything to expose her identity. She says in her affidavit, I do not know any of the accused.
"Now the State says we have eyewitnesses. I submit that if you consider what is written by Lieutenant Colonel Flyman, no evidence to Count 5," he said.
Dlamini said the State, which has charged Magudumana with defeating the ends of justice, said in its submission that the alleged crime happened in Tanzania.
"She must now be charged here with allegations that have everything to do with Tanzania ... Can you really charge and bring it to the district court? I have never seen a charge like this," said Dlamini.
NEVER ON THE RUN
Dlamini said it was the State's own submission that a warrant of arrest was issued for Magudumana on March 4, 2023. It was executed on April 13, 2023, when Magudumana and Bester were arrested at the Lanseria Airport upon their deportation-cum-extradition from Arusha, Tanzania.
Dlamini said Magudumana was "taken out of the country on 17 March 2013".
"That warrant of arrest says that before that day, there was no warrant of arrest, and nobody was looking and tracing for Magudumana. Flyman is not saying ‘I have been looking for Magudumana for 11 months’. He is not saying that.
"All of a sudden, he says bail conditions will not prevent applicants from fleeing the country. The police were never looking for her.
"It cannot be that she was sitting at a place where no one knew where she was. It is contradicted by the evidence of the court.
"Why does somebody write this under oath when he knows it is not true? What is the motive? Dlamini asked.
Dlamini said some of the six companies presented as Magudumana being director were dormant and that the State had presented the information to portray her as having multiple addresses. Dlamini said the Companies Act recognised businesses as their own juristic persons.
He said the State's submission was irrelevant for bail and the fact that Magudumana's Porsche car had been traced to KZN using Tracker did not mean the vehicle was driven by Magudumana.
"If the tracker confirms the movement of the car, does it also confirm the driver? It can never be.
"What evidence does the State have that Magudumana fled the country? Did they rebut the version? No, because they do not have any proof," said Dlamini.
Magudumana remains in custody until the completion of her bail application next Monday, September 4.
Other accused are former G4S prison warder Senohe Matsoara, Zanda Moyo, Zolile Cornelius Sekeleni, former Integritron Integrated Solutions camera technician Teboho Lipholo, suspended G4S employee Tieho Frans Makhotsa, former G4S guard Buti Masukela, suspended G4S employee Natassja Jansen, and G4S employees Joel Makhetha, Moeketsi Ramolula, and Thabang Mier.