Dr Nandipha Magudumana has been granted a lifeline by the Supreme Court of Appeal. This decision comes after the Bloemfontein High Court recently dismissed her request to declare her repatriation from Tanzania as unlawful.
On Friday, the Supreme Court of Appeal made a significant decision in favour of Dr Nandipha Magudumana. They granted her request to appeal the Bloemfontein High Court’s ruling earlier this week, which rejected her application to declare her repatriation from Tanzania as illegal.
Dr Magudumana had passionately argued that there were substantial grounds for the High Court to permit her appeal.
High Court’s Previous Decision
In June, the Bloemfontein High Court dismissed Dr Magudumana’s application to declare her arrest and return from Tanzania as unconstitutional and unlawful. Judge Phillip Loubser concluded that her arrest and return to South Africa was, indeed, a disguised extradition. However, he also found that she had given her consent to it, thereby granting the South African criminal courts jurisdiction.
In her appeal plea, Dr. Magudumana raised a fundamental question: can consent be legally given to an unconstitutional and unlawful act? This matter had not been previously addressed by either the Supreme Court of Appeal or the Constitutional Court.
She further argued that the government’s affidavits failed to make a convincing case for her consent. They merely stated that she did not “verbally or otherwise offer any resistance or protest” and that she had clearly expressed her desire to return to South Africa to be with her children.
Supreme Court of Appeal’s Decision
On Friday afternoon, the Supreme Court of Appeal granted Dr Magudumana’s request for leave to appeal. The court set aside the costs order of the High Court that had dismissed her initial application for leave to appeal. The costs associated with the application for leave to appeal in both the Supreme Court and the High Court will be considered as part of the appeal. However, if Dr. Magudumana decides not to proceed with the appeal, she will be responsible for covering these costs.
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Background on the Case
Dr Magudumana was arrested in Tanzania along with Thabo Bester, a convicted rapist and murderer who had escaped from the Mangaung Correctional Centre. Their apprehension took place near the Kenyan border in April of this year.
If Dr Magudumana succeeds in having her arrest and extradition to South Africa declared as unlawful, this could potentially lead to her removal from the list of suspects in the ongoing court case against Thabo Bester. Legal expert Elton Hart has expressed this possibility.