Magudumana 'can't consent to illegality' argument 'fundamentally flawed’: State

On Friday, Magudumana’s lawyers were in court to try and secure leave to appeal against the dismissal of her application to have her extradition from Tanzania declared unlawful. They argued she couldn’t consent to something that was illegal.

Dr Nandipha Magudumana appeared before the Bloemfontein Magistrates Court to apply for bail on 5 May 2023. Picture: Katlego Jiyane/Eyewitness News

BLOEMFONTEIN - The State believes Dr Nandipha Magudumana has no reasonable prospects of successfully overturning the ruling on the lawfulness of her return to South Africa from Tanzania, which was handed down in June.

Magudumana was nabbed with so-called the “Facebook rapist”, Thabo Bester, in the east African country in April.

This was after allegedly helping Bester escape from the Mangaung Correctional Centre in 2022.

Her legal team was in the Bloemfontein High Court on Friday to try and secure leave to appeal against the dismissal of her application to have her return declared unlawful.

The Bloemfontein High Court in June dismissed Magudumana’s case, finding while her return was indeed unlawful, she had given her consent.

The court on Friday heard an application for leave to appeal that decision where she argued you cannot give consent to an illegality.

READ: ‘You can never consent to an illegality': Magudumana's lawyer tells court

Advocate Neil Snellenburg, for the State, said this argument was fundamentally flawed, though.

“The applicant could not of her own volition say: I want to go home, I’ve been caught in another country, I've been incarcerated.

"I can’t out of my own volition, when South African authorities come to Tanzania to come and discuss and negotiate this matter, I can’t out of my own volition get on that plane and go home with them. That's what the argument is. In law, it’s flawed," said the advocate.

"What I don't hear or understand from this argument... is why the applicant is said to have consented to an illegality. On what basis? She wanted to come home, she came home. It doesn’t suit her because when she came home she was arrested at the airport. When did she consent to an illegality? There was no illegality," added Snellenburg.

Advocate Kessler Perumalsamy, for Magudumana, however, shot back that this was an own goal.

"My learned friend has made the case for leave to appeal with respect. He says he cannot understand what the illegality was. Well, that’s not up for debate, it’s already been concluded. So whether my learned friend thinks there is an illegality or not, perhaps he should argue that at the SCA [Supreme Court of Appeal]."

Judgment is expected on 18 July.