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

Magudumana's lawyers were in the Bloemfontein High Court on Friday attempting to secure leave to appeal the ruling that despite her extradition from Tanzania being declared unlawful, she consented to returning to South Africa.

Nandipha Magudumana in the Bloemfontein Magistrates Court on 3 May 2023. Picture: Katlego Jiyane/Eyewitness News

BLOEMFONTEIN - Lawyers representing Dr Nandipha Magudumana told the Bloemfontein High Court that she cannot consent to an illegality.

They were in court on Friday to try and secure leave to appeal the ruling handed down in June, that while Magudumana's return to South Africa from Tanzania was unlawful, she consented to it.

Magudumana was arrested alongside Thabo Bester in Tanzania in April, after news broke that Bester, also known as the Facebook rapist, escaped from the Mangaung Correctional Centre in 2022.

The High Court previously found that Magudumana’s return to South Africa was, in fact, a “disguised extradition” and not a deportation as the authorities had claimed.

As a result, it was found to be unlawful.

However, the court also found that Magudumana had consented to returning, saying she wanted to be reunited with her children.

Advocate Kessler Perumalsamy, for Magudumana, on Friday told the court this isn’t how it works.

“We submit that you can never consent to an illegality and that’s because all Constitutional inquiries are not subjective in nature,” he argued.

“Consent, in our view, is inherently subjective. It requires the person giving it to say, ‘I’m okay with unconstitutional conduct’. That, in our view, is inconsistent with Section 2 of the Constitution.”

The case continues.