Nandipa Magudumana, who is in custody at the Kroonstad female correctional centre, made an urgent application to have her arrest declared unlawful and unconstitutional.

The Free State High Court Judge Phillip Loubser is expected to deliver his judgment on Monday, about whether the actions of the SAPS and Home Affairs in Tanzania were within international law's norms and standards in relation to the apprehension of Magudumana and Bester in Tanzania during April 2023.

On Thursday 1 June 2023 Judge Loubser reserved judgment after lawyers representing Magudumana and the state argued for more than two hours in the Bloemfontein High Court.

Magudumana filed urgent court papers, claiming that her arrest in Tanzania in April 2023 was unlawful and unconstitutional.

The state's Adv. Neil Snellensburg, representing the police and the National Director of Public Prosecution, told the presiding judge on Thursday that the urgent High Court application is a self-created "urgency".  

Whilst in custody in Tanzania, Magudumana allegedly told the officials that she wanted to be reunited with her children. Adv. Snellensburg said Magudumana only revealed her intentions to come back home to South Africa after the Tanzania authorities arrested her and gave her three days to leave the country. He criticised Magudumana's allegations that she was arrested by SAPS officials. Adv. Snellensburg said she was never arrested nor handcuffed in Tanzania by the SAPS. Instead, she was handed over to the High Commissioner by Tanzanian authorities.

Adv. Joubert Zietsman, representing Home Affairs, said Magudumana failed to make the case that she was arrested in Tanzania by members of SAPS, that she was abducted by SAPS, and transported back to the country by them.

"The facts respectively show that the applicant was arrested in Tanzania by Tanzanian officials for the breach of the Tanzanian Immigration Act and that Tanzanian authorities exercised the discretion to deport the applicant to her country of origin, namely South Africa," Zietsman added.

The state, in its papers filed before the court on Monday 29 May 2023, argued that Magudumana was arrested on 13 April at Lanseria airport by officials who were not part of the Tanzanian mission.

They argue that her arrest was lawful and constitutional. It's understood that her warrant of arrest was issued on 3 April and at that time she and Bester were believed to have been on Tanzanian soil already.

A Human Rights Commission lawyer, Adv. Anton Katz (SC), earlier told Judge Loubser that the state was not playing open cards with Magudumana during her arrest in Tanzania.

He said the state needed Magudumana's consent to be brought back to the country.

Adv. Katz, who is representing Magudumana pro bono, said the state should have told her of the options, which included whether she should be brought back to the country by either extradition or with her consent. He earlier told the court that his client's liberty was at stake.

OFM News