Dr Nandipha’s urgent court bid postponed. But does her case have merit?

Department of Home Affairs officially joins as a respondent

By Marecia Damons and Daniel Steyn

26 May 2023

Advocates Stanley Reiders and Machini Motloung are representing Dr Nandipha Magudumana. Photo: Becker Semela

Nandipha Magudumana’s urgent court application to have her arrest in Tanzania declared “unlawful” has been postponed to next week. The matter was briefly heard at the Free State High Court in Bloemfontein on Friday.

Magudumana is currently detained at Kroonstad prison and is accused of helping convicted rapist and killer Thabo Bester escape from prison in May last year. The pair were apprehended by Tanzanian authorities on 7 April and were brought back to South Africa to face criminal charges related to the escape.

On 19 May Magudumana’s legal team filed papers in the Free State High Court. She wants the court to declare her arrest and “abduction” in Tanzania and her return to South Africa “wrong and unlawful”. Magudumana also wants to be released from prison immediately and for a judge to declare all orders and warrants against her null and void.

During the hearing on Friday, legal representatives for the state and Magudumana submitted a draft court order to Judge Phillip Loubser, asking that the Department of Home Affairs be added to the litigation, and that the matter be postponed, allowing all the parties to file court papers.

Loubser then postponed the case to 1 June. Home Affairs Minister, Aaron Motsoaledi, has been added as a sixth respondent in the matter. Motsoaledi is expected to file opposing papers by Monday 29 May while Magudumana’s lawyers will file their responding papers by Tuesday. The state has not yet filed a response to Magudumana’s case, the court heard.

Does Magudamana’s case have merit?

In court papers, Magudumana says that she was “abducted from a foreign state and brought to South Africa and detained”.

Karyn Maughan wrote in News24 on Friday that Magudumana may be able to convince the court that the way in which she was brought back to South Africa after her arrest in Tanzania, was indeed unlawful.

Tanzanian authorities issued a “notice to prohibit immigrant, Dr Nandipha Magudumana” which ordered her to leave the country within three days. But Magudumana’s lawyers argue that she never saw the document and that she was not given the full three days to consider her options before being handed over to South African authorities. It is this hand-over that Magudumana’s lawyers argue is unlawful, Maughan writes.

However, during a media briefing on Monday, Motsoaledi said that Magudumana’s detention was lawful.

“Dr Nandipha Magudumana and Thabo Bester were declared prohibited immigrants in terms of the immigration laws of Tanzania and were, therefore, as a matter of law, liable to be deported back to their country of origin. The same procedure was followed for the Mozambican national who was in their company,” Motsoaledi said.

He said that Home Affairs director-general Livhuwani Tommy Makhode only managed to access Magudumana’s court papers on Sunday afternoon and was shocked to learn that they were not cited as respondents in the matter.