- Dr. Nandiva Magudumana’s lawyer argued that she could never have consented to a wrongful extradition.
- Last month, Magudumana’s Court of Appeal refused to declare her arrest and detention unlawful and unlawful.
- However, it was revealed in court on Friday that she had told everyone willing to listen that she wanted to go home.
The question of consent was in contention Friday morning at the Free State High Court in Bloemfontein, where Dr Nandiva Magudumana’s application for leave to appeal was heard.
Last month, the same court rejected Magudumana’s appeal to declare her arrest and detention illegal.
Although Justice Philip Loebser said it was clear that the process used to bring Magudumana back to the country was a summary extradition and not a deportation, she was well aware of the charges she would face upon her return to South Africa from Tanzania.
Lubser said Magudumana agreed to remove her because she wanted to be with her children. During the arguments, Magudumana’s lawyer, Attorney Kessler Perumalsamy, said there were grounds to bring her case to the Supreme Court of Appeal.
One can never consent to illegality, Perumalsamy emphasized, adding that it requires someone to say, “I’m fine with unconstitutional behaviour.”
He said that if Magudumana agreed to her return to the country, it would have been in writing.
Has she been briefed on the treaty between South Africa and Tanzania? What was she agreeing to? Disguised delivery? Was that after the Ministry of Interior illegally exercised its powers? When was it approved and to whom? Is it written?
Magudumana was captured in Tanzania in April along with her escaped prisoner boyfriend, Thabo Bester. She has two daughters from a previous marriage.
Arguing on behalf of the police and the national prosecuting authority, defender Neil Snelenberg poked holes in Magudumana’s defence.
He pointed out that she initially claimed that she had been kidnapped and blindfolded, but now changed her tone of voice to say that she did not agree to be removed from Tanzania.
“This is an argument Magudumana wants to capitalize on. They are looking for convincing reasons because they have no prospects of success in the SCA,” he said.
“There is no way for Magudumana to convince a court that she has waived some rights to be stranded in Tanzania.
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“According to the police, she told everyone willing to listen that she wanted to go home. Should they leave her in Tanzania when she wanted to go home?”
Snelenberg said that leave to appeal to Magudumana should be denied.
They will abide by what the court has ordered, said attorney Louis Paul SC, of the Department of Home Affairs.
Judgment has been reserved and will be delivered on July 18.