Magudumana to appeal her extradition on Thursday

Nandipha Magudumana, facing multiple criminal charges, will argue before the Supreme Court of Appeal (SCA) this Thursday that her return to South Africa from Tanzania was unlawful and violated her constitutional rights. Magudumana, who was arrested in April 2023 in Tanzania along with convicted murderer and rapist Thabo Bester, contends that she was “forced” to return, and as such, the charges against her should be dismissed.

However, the State argues that Magudumana’s own affidavit, submitted during a bail application, contradicts her claim. According to the State, the affidavit suggests she returned voluntarily, undermining her argument that her return was unlawful. The State further insists that if the SCA rules her return was indeed unlawful, the remedy should be her release from custody, though the criminal charges should remain in place.

Magudumana’s legal team will contend that her return to South Africa was part of a “disguised extradition” process, violating international protocols. In their written submissions, her lawyers state that she was arrested in Tanzania and deported to South Africa without going through the proper extradition procedures under the Southern African Development Community (SADC) Protocol on Extradition. They argue that, while a previous High Court ruling acknowledged some unlawful actions by South African authorities, it wrongly concluded that Magudumana had consented to her return.

The Free State High Court had earlier ruled that while the return was unlawful, Magudumana had consented to it. She was reportedly handed over to South African authorities by Tanzanian officials with no resistance. The court found that she had been motivated to return to South Africa to be with her children. The judge, Phillip Loubser, concluded that there was no violation of Magudumana’s constitutional rights and refused her leave to appeal. However, the SCA has agreed to hear her case.

Her legal team argues that consent cannot be given to an unlawful act, especially one that contravenes international legal procedures. They contend that there is no evidence suggesting she was informed of her rights or had waived them when agreeing to return. They further argue that this “disguised extradition” should prevent South African courts from prosecuting her for the serious charges she faces, including aiding Bester’s escape from prison, arson, fraud, and violating a corpse.

In the SCA hearing, there will also be a debate over the inclusion of new evidence: Magudumana’s affidavit from her bail application. The State contends that the affidavit, in which she describes being abducted and forced to leave with Bester, supports the idea that her return was voluntary. In the affidavit, Magudumana states that Bester coerced her into leaving with him, under duress and without knowing the destination. She further explained that, due to Bester’s pressure and her helplessness, she agreed to travel back to South Africa with him.

The State points to this affidavit as evidence that Magudumana did not resist the return, which it argues supports the finding that she had, in effect, consented. It also emphasizes that she is a mother of two young children, making it plausible that she would have willingly boarded the return flight to South Africa.

Magudumana’s legal team argues that this interpretation is flawed, asserting that the High Court did not fully examine the lawfulness of her arrest and return, but simply assessed her likelihood of fleeing if granted bail. They argue that the High Court’s decision to rely on her affidavit regarding consent was mistaken, as it overlooked the key issue of whether her return was legally sanctioned.

The State’s position is that, if the SCA accepts that her return was unlawful, the appropriate remedy would be to release her on warning, while allowing the prosecution to continue. The State emphasizes the serious nature of the crimes she is accused of, including aiding Bester’s escape, and the significant public interest in bringing her to trial. It also stresses the interests of the victims’ families, whose loved ones’ bodies were allegedly stolen and mutilated by Bester and his accomplices.

Magudumana is facing multiple charges, including aiding and abetting Bester’s prison escape, fraud, arson, and violating a corpse. The outcome of this appeal could have significant implications for her prosecution, depending on whether the SCA accepts her argument that her return was unlawful.