Court denies ‘flight risk’ Dr Nandipha Magudumana bail

The Bloemfontein magistrate's court on Monday denied Nandipha Magudumana bail, saying she was a flight risk and had demonstrated that she had the “necessary means” and “know-how to leave the country” after her audacious escape with boyfriend Thabo Bester earlier this year.

Magistrate Estelle de Lange said “no bail conditions will assist” in ensuring she attends trial and that Magudumana had failed to “satisfy the court that the interests of justice permit her release on bail”.

Magudumana, her father and other co-accused face charges related to the escape of Bester, a rapist and murderer, from a Mangaung prison last year. Nine of her co-accused have been granted bail by different courts, while Bester and another accused abandoned their bids.

Her bail bid ran over three days as the fraud-accused doctor argued before magistrate De Lange that she had left the country under “pressure and threats” from Bester.

Her legal team spent considerable time arguing against the schedule level of the offences brought against her. Magudumana faces schedule 5 offences, which her legal team fought to have reduced to schedule 1. The former places the burden to prove the interests of justice to permit the release on bail of Magudumana, while the latter moves it to the state.

Magudumana was seen praying as she waited for the matter to get under way. This has been a ritual she adopted for most of her bail application appearances.

De Lange started her judgment by addressing the dispute around the schedule, saying the letter from the Free State director of public prosecutions (DPP) confirming the schedule level of offences against her was “prima facie proof of the charges brought against her”.

“Prima facie proof becomes conclusive proof in the absence of evidence to the contrary. This court does not have any evidence to the contrary, therefore the application will be done in terms of schedule 5 and the onus rests upon the applicant to satisfy the court that the interests of justice permits her release on bail,” she said.

She then summarised the arguments made by both Magudumana's legal team and the state before looking at the various factors she considered when reaching a decision on bail. One of these was the strength of the state's case.

“It is ... important as a starting point to establish that there is sufficient evidence against the applicant to charge her. The certificate that the state handed in that was issued by the DPP is prima facie proof that there is sufficient evidence to charge the applicant on the corruption charges.

“The affidavit of the state was strongly criticised by the defence because it did not contain more detail but I find that it contained sufficient information for me to conclude that there is sufficient information before me in order to come to a conclusion that there is a relatively strong case against the applicant on many of the charges she's facing, including the corruption charges.”

She also looked at whether Magudumana would endanger the safety of the public or others, attempt to evade trial, try to influence or intimidate witnesses, undermine the proper functioning of the courts, or disturb public order if she is released on bail. 

All these factors are outlined in section 60, subsection 4 of the Criminal Procedure Act.

De Lange dismissed the state's evidence of the pending cases against her, saying that while fraud cases had been opened against her, the fact that she hadn't been charged yet meant that they could not be “regarded as pending matters”.

On whether she was likely to evade trial, De Lange looked at how she had escaped the country with Bester earlier this year and that she had no fixed assets but only movable ones, which could be disposed of easily with or without her assistance.

She also said Magudumana was familiar with the identity of the witnesses as the list had been provided to her co-accused during their bail applications. 

Handing down her judgment, De Lange said she weighed the interests of justice versus Magudumana's right to personal freedom and was guided by numerous factors here too. These included the amount of time she has been incarcerated, probable period of detention and her state of health.

De Lange referred to Magudumana's well-groomed appearances in court, as she was often seen in make-up and with different hairstyles during each of her appearances.

“She appears to be in good health and no allegation of ill health was brought to my attention. The applicant is detained in a correctional facility where she's well taken care of. Whenever she appeared before me, she appeared to be well-groomed and in a good state of health. I'm confident that all her reasonable needs are met during her period of detention.”

The magistrate eventually found that Magudumana “is a definite flight risk and that no bail conditions will assist under the circumstances to limit this risk”.

“After weighing up the personal circumstances and the interests of the applicant ... against the interests of justice, I find that she did not satisfy the court that it's in the interests of justice for her to be released on bail,” she said.

“It is, however, in the interests of justice that matters be tried and that the verdict be obtained in a court of law and this can only happen if a person stands trial. Therefore her application to be released on bail is refused.”

Magudumana looked mostly composed as the judgment was handed down but appeared to be holding back tears before the matter was postponed.

It was also confirmed that the matter would eventually go to Free State High Court for trial. It was postponed to October 11 for further investigation.

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