Consent may not be given to unconstitutional and unlawful conduct, said Nandipha Magudumana in appeal court papers filed on Wednesday. 

Magudumana’s attorney filed her notice of application for leave to appeal to the Supreme Court of Appeal, saying there were “compelling reasons” for the high court to grant her leave to appeal. 

This follows the decision of the Free State high court on Monday.

The court dismissed Magudumana’s application to declare her arrest and apprehension in Tanzania unconstitutional and unlawful. Judge Phillip Loubser found that her arrest and return to South Africa was a disguised extradition, as she had argued. But she had consented to it, giving the South African criminal court jurisdiction, said the court.

“But whether consent may be given to an unconstitutional and unlawful act has not been considered by both the Supreme Court of Appeal and the Constitutional Court,” said Maguduman’s appeal notice.  

And as a matter of principle, it may not, said the appeal notice.  

The appeal notice said the cases Loubser had relied on to reach his judgment, and which he said he was bound by, were decided before the final constitution was adopted.

They “make no mention of the rights and values of the constitution. The overwhelming majority of academic commentary on both cases recognise that they are incorrect and inconsistent with the constitution and international law.” 

The notice said it was in the interests of justice that the SCA considered whether these judgments should be overturned.  

But even if consent were found to render the conduct of the government lawful, the SCA should consider what kind of consent was required. “Under international law, consent to extradition must be express and unequivocal, with full knowledge of all rights and benefits, and reduced to writing.”

In the ConCourt’s Mohamed decision, the question of whether consent could render a disguised extradition lawful was left open. But the court said that if it were to be “enforceable, however, it would have to be a fully informed consent and one clearly showing that the applicant was aware of the exact nature and extent of the rights being waived in consequence of such consent”. 

The appeal notice said the government did not make a proper case in their affidavits that Magudumana had consented, only saying she did not “verbally, or otherwise offer any resistance or protest” and that she “informed all and sundry that she wanted to return to South Africa to her children”. 

“Neither paragraph is sufficient to confirm consent [as] recognised in Mohamed,” said the notice. The government affidavits did not say what she was consenting to, nor that she had been informed of all the rights that arise from a challenge to extradition.  

The government's affidavits also did not explain how they would be entitled to seek her consent, given that they argued all along that they had nothing to do with her removal from Tanzania since it was a deportation, said the appeal notice. 

The notice also said the two judgments Loubser had relied on were “on an entirely different footing to this case” and the judge was wrong to have relied on them.  

In those cases, consent had not followed a finding by the court that there had been an unlawful removal to South Africa. “To the extent that [the two judgments] remain good law, it will only apply where there is no prior finding of unlawfulness as expressly contemplated by both judgments. It will not apply where consent is provided following unlawful conduct by the respondents,” said the appeal notice.