Nandipha Magudumana's lawyer said Netflix’s refusal to engage with her led to the legal action.
Convicted rapist and murderer Thabo Bester’s former partner, Nandipha Magudumana, was paid for her role in a Netflix documentary she is now trying to stop from being released, the Gauteng High Court in Pretoria heard on Thursday.
Magudumana and Bester have brought an urgent application to interdict the streaming giant from airing Beauty and the Bester, which is scheduled for release on Friday.
The pair, who were arrested in Tanzania in April 2023 after fleeing South Africa, are facing multiple charges in the Free State High Court in Bloemfontein relating to Bester’s May 2022 escape from prison.
Thabo Bester challenges Netflix documentary
During Wednesday’s proceedings, Advocate MoAfrika Wa Maila, representing Bester, said Netflix was presenting his client’s alleged escape as fact, despite there being no conviction for it yet.
“They are already creating an impression of saying he must be found guilty and that’s where we are talking about a fair trial right being eroded or violated,” Wa Maila said.
He referred to the trailer, where one speaker claims Bester faked his death and escaped from prison.
“He speaks it as though is the gospel truth, as though it’s absolute and has got the factual proof,” the lawyer said.
Watch: Beauty and the Bester trailer
The advocate also criticised the documentary’s title and framing.
“We know the phrase Beauty and the Beast from one of the old movies.
“Now, the beast no longer exists. The beast has been replaced by Bester,” he said.
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Wa Maila accused Netflix of exploiting Bester’s story for profit without his consent and failing to offer him a right of reply.
“It means that the right to dignity of Mr Bester is in question. He has no rights anymore.
“He can be spoken about as if he is just of meat that has no feelings, emotions or mind.”
Nandipha Magudumana’s commercial agreement with Netflix
Advocate Lerato Moela, for Magudumana, told the court his client had sent a cease-and-desist letter to Storyscope, the production company behind the documentary, on 20 August to halt its release until she could view it and give input as part of her contractual rights.
“There is a commercial agreement between Ms Nandipha Magudumana and Storyscope,” Moela said.
READ MORE: Nandipha Magudumana’s appeal against deportation dismissed by SCA
He added that Magudumana was “at the mercy of Netflix” because of contractual clauses that allegedly prevented her from appearing in court except to claim damages.
“Netflix’s response says that Dr Magudumana has concluded an archive licensing agreement in terms of which she agreed commercial terms for the use for her personal archives in the production of the documentary and she has waived the right to interdict the documentary,” he said.
Moela said Netflix’s refusal to engage further had led to the present legal action.
‘Insignificant piece’
Netflix’s lawyer, Advocate Temba Ngcukaitobi, described the documentary as an “insignificant piece” of a much larger story that has already been extensively covered about Bester’s escape and Magudumana’s alleged role.
Ngcukaitobi argued it would be “astonishing if the media were prohibited from repeating these facts”, adding that the documentary merely points out that “the man is an escapee and that the lady has aided and abetted the escape”.
“This is a serious court. We are all adults. The man was serving life in prison; he got out of it.
“He was not released by the system, so he escaped. Let’s not play around,” he said.
READ MORE: Convicted rapist Thabo Bester appeals to ConCourt, alleges judicial bias
The lawyer told the court that that no law requires a person to be allowed to comment before publication.
“No right is established here at all. What has happened is that Ms Magudumana has distorted the contents of the agreement and suggested without any evidence that it gave her right of veto and prior comment, but it didn’t.”
He revealed that Magudumana had been invited to participate via a recorded interview.
Emails read out by Ngcukaitobi showed that Magudumana had agreed to take part in the documentary; however, she refused to do so until she received the final payment under the agreement.
“It is obviously a factor that it [Netflix] has made a commercial investment to the production of the documentary and it has done so with the knowledge and participation of Ms Magudumana in circumstances where she was paid for the use of her archive material.
“It is, therefore, unacceptable for her at last minute to turn around and say ‘I don’t know what you were doing’.”
