‘What an emotive argument’: Police and NPA insist Dr Nandipha’s appeal will fail

The state says there are no compelling reasons for Dr Nandipha Magudumana to be granted leave to appeal at the Supreme Court of Appeal (SCA).

Magudumana’s appeal application to overturn last month’s ruling on her extradition back to South Africa was heard by the Free State High Court in Bloemfontein on Friday.

The high court dismissed her bid to have her arrest in Tanzania declared unlawful.

Judge Phillip Loubser at the time said her deportation was, in fact, an extradition since South African officials participated in the handing over of Magudumana and her partner, Thabo Bester.

ALSO READ: ‘SCA will reach a different conclusion’: Lawyer denies Dr Nandipha consented to her arrest in Tanzania

Loubser also noted that Magudumana consented to be brought back to the country from Tanzania.

But her lawyer, advocate Kessler Perumalsamy on Friday argued against the court’s conclusion, saying one can never consent to “an illegality”.

“It requires someone to say I am okay with unconstitutional conduct,” the advocate said.

Perumalsamy said his client believed there were reasonable prospects of success in her application as the SCA would reach a different conclusion on the question of consent.

‘Fundamentally flawed’

Presenting his case on behalf of the National Prosecuting Authority (NPA) and the South African Police Service (Saps), Advocate Neil Snellenburg said the defence’s case was “fundamentally flawed”.

“What an emotive argument,” he remarked.

Snellenburg argued that Magudumana did not resist when she boarded the private charter flight back to South Africa.

“You would remember there was blatant denial that the applicant could not out of her own volition say I want to go home, I have been caught in another country, I have been incarcerated [and therefore] when South African authorities come to Tanzania to discuss and negotiate this matter, I can’t out of my own volition get on that plane and go home with them. That’s what is the argument [and] in law it’s flawed,” he told the court.

READ MORE: Saps and NPA deny Magudumana’s claims of unlawful arrest, arguing her application is abuse of court process

“I must admit what I do not hear or understand from this argument is why the applicant is said to have consented to an illegality… on what basis? It doesn’t suit her now because she was arrested when she landed at the airport,” Snellenburg later said.

The advocate maintained that her rights were not violated.

“This is an argument that the applicant wants to profit from. It’s not supported by law. They’re looking for compelling reasons because they don’t have prospects of success.”

Watch the proceedings below:

Snellenburg highlighted that the defence, in the appeal, did not even mention Magudumana’s claims that she was “abducted” by the South African police.

“She said she was abducted and blindfolded, which she [has] apparently abandoned.”

He further pointed out the police said the accused told everyone who was willing to listen that she wanted to return to the country.

“Should they have left her in Tanzania when she wanted to come home?”

Snellenburg asked for a cost order against Magudumana, including the cost of two counsel, should the court dismiss her appeal application.

Meanwhile, advocate Louis Pohl also made brief submissions for Home Affairs, but revealed that the department would abide by the court’s decision regardless of the outcome.

The court reserved its judgment, which will be handed down next Tuesday, 18 July.

READ NOW: Thabo Bester: Suspect with ‘strong emotional ties’ to Bloemfontein granted R10k bail