There are “compelling reasons” for the Supreme Court of Appeal to hear an appeal by Nandipha Magudumana on the lawfulness of her removal from Tanzania to South Africa, say her lawyers in legal argument to the Free State high court.
Her application for leave to appeal will be heard on Friday. In June, the court found that her removal to South Africa amounted to a disguised extradition, which was in breach of the constitution and international law. But, said judge Phillip Loubser, our criminal courts retained jurisdiction over her because she had consented to her return.
But her counsel, Anton Katz SC and Kessler Perumalsamy, will argue on Friday that her case raises new and important legal questions that should be settled by an appeal court. One of these is whether a person can consent to unconstitutional conduct by the state.
“An appellate court has not yet had the opportunity to consider whether consent may be given to unconstitutional conduct,” says Katz in written legal submissions.
Magudumana's counsel will argue that consent cannot be given to unconstitutional conduct. There was already a high court judgment from the Gauteng division that said as much, they say. Loubser’s decision was in conflict with that decision. There are also two other judgments, of the appellate division (now the Supreme Court of Appeal), which say consent can be provided to a disguised extradition — but “neither case considered the impact of the constitution on the nature of consent to an illegality”, says Katz.
“An appellate court is required to harmonise the law by resolving the conflict of two or more decisions,” says Katz. This is why an appeal should be allowed.
The earlier decisions of the appellate division, which Loubser said he considered himself bound by, were criticised for being inconsistent with international law, says Katz, with Prof John Dugard having called on the courts to repudiate these decisions as “judicial aberrations”.
Magudumana’s counsel argue that there is another compelling reason the appeal should be allowed: if the SCA were to decide that a person may consent to unconstitutional conduct, what form should this consent take? “International law requires a waiver of extradition to be unequivocal, express and in writing,” says Katz.
Yet in Magudumana’s case, the government had only said in its court papers that she had not offered any resistance or protest to her return and that she had said to “all and sundry” that she wished to return to her children.
The appeal also has reasonable prospects of success, says Katz. Even if the courts did not accept that the consent must be in writing, as required in international law, an earlier judgment of the Constitutional Court said that it had at least to be “fully informed and clear”.
In Loubser’s judgment, he said that he “no hesitation” in finding that she was “well aware at the time of her handing over of the charges that could be levelled against her upon her arrival in South Africa. She nevertheless consented to her removal ... because she wanted to return to be with her children. At the very least she had willingly acquiesced to her transportation back to South Africa.”
But the fact that a person “does not protest their forced return does not mean that they provided clear and fully informed consent to their return”, argues Katz. And there was nothing pleaded in the court papers that her consent was informed, he says.
“None of the respondents pleaded any facts regarding when the consent was given, what the consent was for, to whom the consent was made, what information was provided to the applicant prior to her consent [or] whether the applicant was informed of all the protections available to her in an extradition inquiry,” he says.
There were also contradictory versions of what happened as far as the consent was concerned — between the department of home affairs, the police and the NPA, says Katz. The department of home affairs did not say that she consented to her return, he says. They said she was arrested by Tanzanian officials and deported — “forcibly returned to South Africa at their instance”, he says.
The police and the NPA, on the other hand, argued in court that “consent was provided despite simultaneously contending that they played no substantive role in the applicant's return to South Africa”, says Katz.
These contradictory versions showed that Magudumana’s consent could not have been “fully informed and clear”, he says. “Either the applicant consented to her return, or she was arrested and forcibly returned on the basis of section 41 of the Immigration Act. Both are not simultaneously true.”
The government respondents — including the minister of home affairs, the National Prosecuting Authority and the police — are yet to file their written legal submissions. However, the minister of home affairs, who initially intended to cross-appeal, has since withdrawn his notice of cross-appeal and said he would “abide” the decision of the court. By the time of publication, the minister had not responded to a question on why he has changed his stance.
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