The high court in Bloemfontein has dismissed Nandipha Magudumana’s application for leave to appeal.
Magudumana previously chose to abandon bail in order to contest the legality of her deportation from the Republic of Tanzania, where she was apprehended while attempting to flee the country with her partner Thabo Bester, a convicted murderer and rapist.
Arguing that her deportation on April 13 was unlawful, Magudumana approached the high court arguing that consent cannot be given to unconstitutional and illegal conduct.
During the proceedings on Friday her representative, advocate Kessler Perumalsamy, asserted that the Supreme Court of Appeal (SCA) would arrive at a different conclusion regarding her alleged consent to being brought back to South Africa.
He posed several questions including the circumstances and recipients of the consent, emphasizing a need to clarify whether the constitution permits consent to unconstitutional conduct.
Perumalsamy highlighted that the judgment labelling Magudumana’s return as a disguised extradition instead of deportation, as authorities had claimed, constituted unconstitutional conduct.
“We submit [that] there are reasonable prospects of success at the SCA,” asserted Perumalsamy, indicating confidence in the appeal process.
Contrary to this stance advocate Neil Snellenburg SC, representing the police and the National Prosecuting Authority, argued that the application lacked reasonable prospects of success.
Snellenburg pointed out that Magudumana had not willingly disclosed her activities in Tanzania, highlighting her shift away from claiming abduction and her desire to return to her children.
He emphasized that the law often hinges on logic, and asserted that the facts of the case were clear: Magudumana wanted to come home and did so.
Advocate Louis Pohl SC, representing Home Affairs, expressed a willingness to abide by the court’s decision, refraining from taking a position on the matter. He said the department would abide by whatever the court ordered.
Handing down the judgment on Tuesday, judge Phillip Loubser said: “Having regard to all the submissions made on behalf of the applicant in the present application for leave, I am of the view that those submissions cannot be successful in light of the findings of facts made by this court in the application launched by the applicant.
“I am therefore not persuaded that another court would come to a different conclusion or that there are other compelling reasons why the matter should proceed on appeal.
“The following order is therefore made, the application for leave to appeal is dismissed with costs.”
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