SCA dismisses Nandipha Magudumana’s deportation appeal

The Supreme Court of Appeal (SCA) has dismissed Nandipha Magudumana's bid to have her deportation from Tanzania declared unlawful. 

The SCA briefly handed down the judgment on Friday. The majority judgment dismissed the appeal with costs of the two counsels, while the minority judgment upheld the appeal. 

The National Prosecuting Authority (NPA) welcomed the judgment but noted the minority judgment.

In June 2023, Free State High Court judge Phillip Loubser dismissed Magudumana’s application for her arrest and deportation from Tanzania to be declared unlawful and set aside. In his ruling, Loubser found she had consented to her removal by South African home affairs officials from Tanzania as she wanted to return home to be with her children. 

The SCA accepted evidence that the Tanzanian government had declared Magudumana and Bester prohibited immigrants and had decided to deport them. Authorities there found the pair were not legally present in Tanzania as they had entered, and remained there, without legal documentation. 

They were then handed over to South African authorities as this was their country of origin, and flown to Johannesburg on a charter flight.

The court heard from the SA government that its high commission engaged officials of the department of home affairs to facilitate the removal of the duo from Tanzania. Police accompanied the officials on the flight to provide security was Bester was considered dangerous. They did not arrest Magudumana there, the officials said.

SCA deputy president Dumisani Zondi found this to be plausible and ruled: "The overwhelming evidence is that [Magudumana] and Bester were arrested by the Tanzanian authorities for having violated the immigration laws of that country. When she arrived at Lanseria airport, she was lawfully arrested by members of the SA Police Service."

The dissenting judgment by judge Tati Makgoka said: "There is no procedure in international law in terms of which a fugitive from justice can simply be ‘handed over’ to the country in which they are sought for prosecution based on an agreement between states. That can only be achieved through an extradition process."

It also questioned whether Magudumana had given informed consent to return to SA, including whether she had been informed before this that a warrant of arrest had been issued and would be executed on her return. Makgoka found the handover by Tanzanian authorities to SA officials, and the subsequent deportation, were unlawful.

NPA spokesperson Mthunzi Mhaga said: “The NPA’s prosecution team will focus on ensuring the trial set down for July 21 to September 19 before the Free State High Court in Bloemfontein proceeds without unreasonable delay.”

Magudumana and her co-accused face 38 counts of fraud, corruption, money laundering, assisting an inmate to escape, violation of the body, arson and defeating the ends of justice.

Mhaga said: “The NPA is committed to ensuring justice is not only done but seen to be done because of the alleged crimes’ impact on the rule of law and the victims.”

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