One of the four judges said he had released her.
The Court of Appeals held that Nandifah Magdumana’s return from Tanzania to South Africa is not illegal and that she still has to go to trial. However, one of the four judges wrote a minority sentence and said he released Magdumana and stopped a criminal case against her. This means Magdumana will take over the matter to the Constitutional Court.
Nandifah Magdamana has failed to persuade the Supreme Court of Appeals that he was illegally forced to return to South Africa after being arrested in Tanzania along with fleeing prisoner Tabo Bester in April 2023.
Magudumana faces multiple accusations in May 2022 to help Bester escape from prison. She is currently in prison awaiting trial, which is scheduled to begin in July.
Her legal team had argued that her constitutional rights were violated, that she should be released from detention immediately, and that the charges should be declared “null and void.”
This was the appeal of an earlier ruling before the Bloemfontein High Court, where Judge Philip Luber ruled that her constitutional rights were not infringed.
Louver determined that the arrest in Tanzania was a “fake extradition” without justification, but was not illegal as she was willing to return to South Africa.
He refused leave to appeal her application. However, regarding the petition, the SCA agreed to hear the issue.
On Friday, the SCA ruled her with a majority. It was justice to Fayeza Catley Setron, Trevor Golvan and Netti Molopa Sethosa who agreed.
However, due to the minority ruling in her favor by Judge Tati McGoka, Magdumana may attempt to take the matter to the Constitutional Court.
Read the judgment here.
In her ruling on Friday, SCA Vice President Dumisani Zondi said that when the High Court handed over to South African officials in Tanzania, she found Magadumana aware of the charges against her, but she agreed because she wanted to be with her children.
Magdmana’s legal team had argued that they should have surrendered from a Tanzanian legal standpoint. She was not permitted to be removed as no extradition hearing took place.
However, the respondents — the prosecutor’s director, the free state, the police minister, and the home minister — told Tanzania it was illegal when she was handed over to the Interior and Immigration Bureau and offered no resistance or protest.
She also told “All and Sundry” she wanted to return to South Africa to her children. They denied that she was blindfolded at every stage or that SAP played any role in the handover.
“The minister’s version is that members of SAPS were not involved in her arrest or removal from the country. There is no reason to reject this version,” he said.
There was nothing ominous about the fact that SAPS members were on the plane, as Bester is considered extremely dangerous.
Regarding the Home Minister, Zondi simply said there was no lawsuit.
Magadumana had alleged that there was a “conspiracy” between South Africa and Tanzania to secure deportation to avoid extradition procedures.
However, Zondi said this was a “de facto” dispute that must be decided in the minister’s favor.
“We found that the appellant was not arrested by members of SAPS and could not show that the police had acted illegally. There is overwhelming evidence that she and Mr. Bester were arrested by Tanzanian authorities for violating the country’s immigration laws.
Minority judgement
In his dissent, Judge McGoka said he supported the appeal, suspended criminal cases and ordered her to be released.
He said that even if Magadumana was not arrested by SAPS in Tanzania, the legality of being handed over to South African authorities by Tanzanian authorities should be taken into consideration.
He said that fellow judges had not properly addressed the issue of “faking extradition” and that once the issue went to the Constitutional Court, the court would not have the benefit of the SCA’s view on the matter.
He said he agreed to Bloemfontein’s ruling that it was a disguised extradition.
He said there is no procedure in international law in that fugitives from justice can simply be “extrapped” – that can only be done through the extradition process.
The agreement between the two countries was “illegal,” he said.
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As a banned immigrant, she had to be detained until boarding a ship or aircraft to leave Tanzania. It was her right to choose her destination, but it was violated.
“The facts clearly, the South African authorities went to Tanzania with one purpose in mind: that the appellant will be detained to face prosecution,” McGoka said.
He said that respondents’ reliance on her cooperation and alleged consent did not apply if there was a discovery (by the High Court) that it was an illegal, disguised extradition.
“I believe that valid consent will only be made in advance and in full knowledge of the exempt rights, not after such a violation of the right.
“What real choices might be asked, did she have? If she had said she wanted to go to another country except South Africa, it’s safe to assume that her wishes were not respected.”
Given the severity of the allegations against Magadumana, Magoka said his findings “a natural evoke digging from the public.”
“But the state cannot be allowed to act illegally.”
He declared the handover illegal, saying he supported the appeal. He would have declared that the NPA has no jurisdiction to test Magadumana and that she would be released from custody.
