Dr Nandipha Magudumana, who claimed that her deportation from Tanzania was unlawful, has applied for leave to appeal the ruling of the Bloemfontein High Court.
In court papers filed on Wednesday, Magudumana is arguing that consent cannot be given to unconstitutional and unlawful conduct.
She contends that the court relied on cases which were decided before the final constitution was adopted and failed to take into account the rights and values enshrined in the constitution.
Magudumana claims that if the consent could render the respondents’ conduct lawful and constitutional, it is essential for the Supreme Court of Appeal (SCA) to examine the nature of the consent required.
She submitted that the court erred and misdirected itself in its ruling.
Magudumana had approached the high court arguing that her deportation from the United Republic of Tanzania on April 13 was illegal.
While judge Phillip Loubser acknowledged that the purported deportation was, in fact, a disguised extradition, he ruled against Magudumana on Monday, citing her willing consent to leave the country with her lover Thabo Bester, a convicted murderer and rapist.
“It is patently clear that the respondents willingly participated in the handing over at the airport believing that such handing over was done in terms of international law and in terms of the law in Tanzania,” said Loubser.
“They didn’t realise this handover was an extradition not deportation.”
It remains to be seen whether the SCA will grant Magudumana leave to appeal and, if so, what impact the final decision will have on the case where she is expected to be tried for aiding a convicted criminal to escape from lawful custody.
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