The deportation of celebrity doctor Nandipha Magudumana from Tanzania to South Africa to face criminal charges was a “charade, a collusion and a ruse”, her legal representative, advocate Anton Katz, argued before the Constitutional Court on Wednesday.
The Supreme Court of Appeal dismissed Magudumana’s bid to have her arrest and deportation in Tanzania in 2023 declared unlawful, and she has taken the matter to the apex court, arguing that it was an unlawful “disguised extradition”.
She is also seeking an order for her release from prison, arguing that the South African courts do not have jurisdiction to try her.
Constitutional Court justices pressed legal representatives at Thursday’s hearing on whether the order sought would not permanently stay criminal prosecution against Magudumana should the court find in her favour.
They also discussed the need for just and equitable relief, should the court find the deportation was unlawful, while considering what effect the case would have on other criminal trials.
Magudumana was arrested in Tanzania along with convicted rapist and murderer Thabo Bester, who had escaped from Mangaung prison and was recaptured months later.
The state accuses Magudumana of helping Bester to pull off his brazen escape from prison.
Katz argued the deportation was unlawful because Tanzanian authorities and South African officials reached an agreement on the matter. Under international law, deportation is a unilateral act, but in Magudumana’s case the two countries had co-operated, he said.
“The deportation was a collusion. It was a charade and a ruse,” he said.
Katz contended that South African authorities should have applied for Magudumana’s extradition per formal diplomatic procedures.
South Africa did not file for the extradition of Bester and Magudumana. Instead, Tanzania deported the duo for being in the foreign country unlawfully.
“This case strikes at the heart of criminal justice in South Africa,” Justice Jody Kollapen said.
Kollapen spoke with Katz on possible just relief in the case should Magudumana’s appeal succeed and how the court order should balance the deportation and a criminal trial.
Katz said a just relief would be for Magudumana’s release, and “maybe one day” when she leaves the country, the state could apply for her extradition.
Justice Kollapen replied that should the court find the state had acted unlawfully and Magudumana is released but also find that the warrant for her arrest still stands, “there is nothing preventing authorities from acting upon that warrant”.
“In that way we would have vindicated the rule of law and established a clear principle, but at the same time she will have a day in court, I think she deserves and South Africa deserves.”
Katz argued that the court would be failing to grant a just relief in that case.
Justice Owen Rogers asked Katz how the court could rule handing Magudumana over to SA authorities was unlawful if the Tanzanian authorities themselves had acted lawfully.
Katz said the court was limited to only South African authorities’ actions and should set aside the South African authorities’ acceptance of Magudumana.
Advocate Neil Snellenburg, representing the National Prosecuting Authority and the SAPS, argued that “it would really be a dark day, a travesty of justice”, should the court rule in favour of Magudumana.
Chief Justice Mandisa Maya sought to know what would prevent the police from simply arresting Magudumana again should the court rule in her favour.
Snellenburg said the possibility of Magudumana’s prosecution would depend on the court’s order in the event the state’s case on deportation fails.
He also said Magudumana’s application was fatal because, in her initial challenge against her deportation, she said she had been “abducted” from Tanzania by South African police. But in her replying affidavit she stated that it was a case of “disguised extradition”.
Advocate Nicole Mayet, for the department of home affairs, rejected the collusion claims. Tanzania is a sovereign state and unilaterally decided to deport Magudumana, she said.
“There was no collusion, no influence. There was a [South African] delegation ... but the decision to deport was that of the Tanzanian authorities.”
The agreement between South Africa and Tanzania was only to the extent of logistics and ensuring that the deportation order was implemented and that Bester, who was described as a “dangerous criminal”, would be deported under escort.
“The decision to deport is unilateral but it cannot be implemented without an agreement,” she said.
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