Dr Nandipha said ‘I want to go home to my children’: NPA’s Snellenburg

Dr Nandipha Magudumana said “to everyone who was willing to listen, ‘I want to go home to my children,’” counsel for the police and the National Prosecuting Authority (NPA) Neil Snellenburg SC said in court on Friday.

“That was her wish. There was no illegality,” he said.

Snellenburg was opposing Magudumana’s application to appeal against the high court judgment that found South African courts retained criminal jurisdiction over her.

In June, Free State High Court judge Phillip Loubser found that though her removal to South Africa from Tanzania was a “disguised extradition”, which was unconstitutional, she had consented to her return. Her consent meant South Africa’s criminal courts retained jurisdiction over her.

In court on Friday, her counsel Kessler Perumalsamy argued there were reasonable prospects that an appeal court would come to a different conclusion to Loubser’s. He said the requirement for consent was that it be “fully informed and clear”.

He referred to a recent judgment of the Supreme Court of Appeal (SCA) which he said set out the requirements for informed consent, including that the waiver must be clear and unequivocal, that the applicant was aware of an extradition treaty between the two countries, that they knew they were entitled to a hearing and that they knew of the “double criminality principle”, namely that the crime they were accused of was a crime in both countries.

However, when police and the NPA defended the consent allegedly given by Magudumana, all they spoke of was that she offered no resistance to her return and that she said she wanted to be with her children, said Perumalsamy.

In their version, “you’ll find no mention on waiver on consent, you’ll find no mention of waiver or agreement. Was she informed of the treaty between South Africa and Tanzania, the Sadc protocol on extradition?”

Perumalsamy argued that in addition to good prospects of success, there were compelling reasons for the court to grant leave to appeal. There were conflicting judgments on whether a person could consent to unconstitutional conduct by the state.

There was the case of Shaba, he said, which found a person could not consent to unconstitutional conduct, which conflicted with Loubser’s judgment. He said this question had previously been left open by the Constitutional Court in the Mohamed case about an extradition where someone was facing the death penalty.

Perumalsamy also argued that once a court found the state had acted unconstitutionally, it was obliged to declare in its order that the conduct was unconstitutional.

However, Snellenburg said there were no reasonable prospects of success and no compelling reasons to grant leave to appeal.

He argued that Magudumana had never sought an order asking the court to declare the disguised extradition unlawful because her case had originally been about an abduction by the police.

“If a party wishes a declaration of invalidity to be issued in relation to particular conduct, it must properly and specifically place such an issue before the court,” he said in his written argument.

In court, he also argued the SCA judgment Perumalsamy was referring to was not a conflicting judgment, and the paragraphs Perumalsamy had quoted from were recounting counsel’s argument, not distilling the law. Nor had the Constitutional Court left the question open in Mohamed if its judgment was looked at in context, he said.

“There is no novel point. There are no conflicting judgments here. This is an argument that the applicant wants to proffer [but] it is not supported by the law. They are looking for compelling reasons because they do not have prospects of success,” he said.

Snellenburg said there was “no way” Magudumana was going to convince any court of her argument. She wanted to come home and she came home, he said. Now that it did not suit her, she wanted to make another argument.

“No court will make such a finding,” he said, adding: “The law is, more often than not, about logic.”

Perumalsamy said Snellenburg had not said a word about the conflicting Shaba judgment, which was, in itself, a compelling reason to grant leave to appeal. He had also misconceived the SCA judgment he had quoted from as the NPA had come to court to show that all those requirements, of agreement and waive, had been met, he said.

Loubser said he would give an order on Tuesday next week.

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