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WRAP | Judgment in Magudumana 'unlawful abduction' application to be delivered on Monday

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01 June 15:42

We conclude until Monday.

01 June 15:42

The ruling that the High Court will give on Monday will, therefore, not just have immediate implications for Magudumana's immediate freedom from custody, but her future trial.

- Karyn Maughan

01 June 15:40

Crucially, the State is arguing that - even if Magudumana succeeds - the High Court should not block her from facing trial, albeit on a new arrest warrant.

It says it would not be "just and equitable" for Magudumana not to face trial. Her lawyers dispute this.

- Karyn Maughan

01 June 15:38

Katz has essentially argued that Judge Loubser is bound by rulings that condemned unlawful arrests/rendition processes in or from other countries. He makes specific reference to the 1991 Ebrahim case, which focused on how  two men identifying themselves as South African police officers seized a South African member of the military wing of the ANC in Swaziland in December 1986.

Ebrahim was bound, gagged, blindfolded, and brought to Pretoria and charged with treason. Swaziland did not protest this abduction. Ebrahim argued that his abduction and rendition violated international law, and that the trial court was thus incompetent to try him because international law was a part of South African law. He won that case, with the High Court  concluding that it lacked jurisdiction to try a person brought before it from another state by means of state-sponsored abduction.

Magudumana is trying to use this case to have the trial against her invalidated.

- Karyn Maughan

01 June 15:25

Judge Loubser stresses that hopefully there will be an understanding that he needs to digest all the arguments made before him. He intends to deliver his ruling on Magudumana's application on Monday, 5 June.

- Karyn Maughan

01 June 15:16

Katz stresses that Magudumana's application is governed by rule of law considerations.

- Karyn Maughan

01 June 15:00

Katz now addresses the State's argument that Magudumana consented to her deportation. He denies that this was the case.

- Karyn Maughan

01 June 14:49

Katz adds that there is an apparent clash between the State and Home Affairs: with one claiming that Magudumana consented to her disputed deportation and the other claiming that the decision to deport her was made by the Tanzanian government. - Karyn Maughan

- Karyn Maughan

01 June 14:47

Katz now makes reference to the letters sent by Magudumana's lawyer to the police and NPA, in which he asked for further specific details about her arrest in Tanzania. These requests for further information were not responded to and this left "a lot to be desired", he says.

- Karyn Maughan

01 June 14:43

Katz now replies to the state's assertions that Magudumana has belatedly made claims that she was subjected to a "disguised extradition". He accuses the SA government of "playing possum" with the doctor - in other words, pretending to be oblivious about what her case actually is.

- Karyn Maughan

01 June 14:38

Zietsman now references Magudumana's inclusion of quotes by Minister Bheki Cele and a police spokesperson - and her claim that she wanted to launch a challenge to her arrest in the Tanzanian courts when she was deported - in her replying application.

The Home Affairs department says this is a new matter that she did not include in her initial application and want it struck from the court record.

- Karyn Maughan

01 June 14:33

There was nothing unlawful about the cooperation between the South African and Tanzanian governments in relation to the Magudumana deportation, Zietsman says. He stresses that the Tanzanian government wanted to ensure that she and Bester left their country.

- Karyn Maughan

01 June 14:31

Zietsman questions why Magudumana did not challenge the decision of the Tanzanian government to deport her. He says she is asking the High Court to find that the Tanzanian government "colluded" with South Africa to get her out of the country - and stresses that the fact that there was "cooperation" between Tanzania and South Africa does not amount to an unlawful "agreement" between them.

- Karyn Maughan

01 June 14:26

Zietsman now addresses Magudumana's argument that she was subjected to a "disguised extradition", not a deportation. He says she is trying to get the High Court to make its own determination about what the Tanzanian government's intentions were in deporting her. Judge Loubser does not have the jurisdiction to do so, he says, before adding that Magudumana has  not actually attacked the decision of the Tanzanian government to deport her.

- Karyn Maughan

01 June 14:18

Zietsman says the decision to "deport [Magudumana] back to South Africa, not to where she wants to go, was taken by the Tanzanian government". In a sworn statement before the Free State High Court in Bloemfontein, the third secretary in the SA High Commission in Tanzania Neo Moroeng has reiterated the State's claims that Magudumana had been lawfully deported on 12 April, after being declared a "prohibited immigrant" under Tanzanian immigration law.

Under that law, Moroeng says. a "prohibited immigrant” is any person who, when he or she tries to enter or enters Tanzania, is defined as:

"a person whose entry into or continued presence in Tanzania is, in the opinion of the Minister or Commissioner General, undesirable and who is declared by the Minister or the Commissioner General to be a prohibited immigrant; except that every declaration of the Commissioner General under this paragraph shall be subject to confirmation by the Minister, whose decision shall be final".

- Karyn Maughan

01 June 14:10

Zietsman says the Tanzanian police have confirmed that they arrested Bester and Magudumana. He makes reference to the "prohibited immigrant" notice issued against Magudumana by the Tanzanian government, which gave her three days to leave the country "by escort". Government is adamant that there was nothing unlawful about this disputed deportation.

- Karyn Maughan

01 June 14:07

Zietsman points out that Magudumana has not challenged the conduct of the Tanzanian government in ordering her deportation. Like Snellenburg, he accuses her of "morphing" her initial claim that she was unlawfully arrested by SA police in Tanzania to an attack on her alleged "disguised extradition".

- Karyn Maughan

01 June 14:02

We resume. Advocate Joubert Zietsman SC will now argue for the department of Home Affairs. - Karyn Maughan

01 June 13:05

We will resume at 2pm.

01 June 13:01

The state wraps up.

Snellenburg makes two points:

1) There is no proof that the SA government asked for Magudumana's deportation.

2) Magudumana started out challenging her alleged unlawful arrest by police and now targets her attack on the conduct of the Home Affairs department.

We adjourn for lunch.

- Karyn Maughan

01 June 12:56

Snellenburg stresses the serious nature of the charges that Magudumana faces and says that the proceedings against her also impact the victims of her alleged crimes, "people who are entitled to see justice done".

The interests of these victims and the public need to be taken into account, he says.

- Karyn Maughan

01 June 12:53

Snellenburg is adamant that Magudumana's case should be dismissed. If it is not, however, and should the High Court find that her arrest and detention was unlawful, he questions her application for an order that the High Court invalidate all the warrants issued against her by the Bester escape trial court.

He says it is unclear what the impact of this order will be and points out that Magudumana has not challenged the legality of her prosecution.

- Karyn Maughan

01 June 12:44

"In the event that this court is inclined to hear this matter as one of urgency, it is respectfully submitted that this application stands to be dismissed with costs by reason of, firstly, the material dispute of facts highlighted above and, secondly, the fact that [Magudumana] has woefully failed to prove the alleged arrest and abduction by the South African Police Services in Tanzania."

- Karyn Maughan

01 June 12:42

Snellenburg also points out that Magudumana was offered consular legal services after she was apprehended by Tanzanian police. She declined such services, he says.

- Karyn Maughan

01 June 12:39

Snellenburg stresses that – following the Tanzanian’s Declaration and Order that Magudumana should be deported – she "acquiesced to being transported back to South Africa" by the Department of Home Affairs.

"The escort by the SAPS was for the simple reasons that Bester was a sentenced prisoner and an escapee from a maximum-security prison, who potentially posed a risk of danger to the DHA officials."

- Karyn Maughan

01 June 12:36

State's heads of argument:

"One thing is certain. [Magudumana's] deportation from Tanzania to South Africa was at the behest of the Tanzanian government, with the [Department of Home Affairs] providing for her transportation to South Africa. With respect, there is nothing untoward about this.

"This is not a case where the SAPS entered Tanzania and without the knowledge of the Tanzanian authorities, arrested [Magudumana]. This factor alone destroys [Magudumana's] case."

- Karyn Maughan

01 June 12:32

In response to questions from Loubser, Snellenburg confirms that the state is arguing that Magudumana was "hitching a ride" on the plane that brought her and Bester back to South Africa.

- Karyn Maughan

01 June 12:30

Snellenburg accuses Magudumana's lawyers of changing her case and only claiming that she was the victim of a "disguised extradition" after SA law enforcement disputed her claims that she had been unlawfully arrested by SA police in Tanzania.

This amounts to a "trial by ambush", he says.

- Karyn Maughan

01 June 12:27

Snellenburg points to evidence that Magudumana "told all and sundry" that she wanted to go home to her children in South Africa. Katz did not outright dispute this, but stressed that Magudumana never consented to be deported.

Snellenburg also contends that police were present on the flight that took Bester and Magudumana back to SA because of his status as a dangerous and violent criminal.

- Karyn Maughan

01 June 12:23

Snellenburg says Magudumana's founding affidavit is riddled with untruth. The police and NPA have vehemently denied her claims that she was unlawfully arrested by SA police in Tanzania and "blindfolded".

Snellenburg says she and Bester, who he stresses is an escaped serial rapist and murderer, were arrested by Tanzanian police.

- Karyn Maughan

01 June 12:17

NPA, police heads of argument: 

"[Magudumana], having been in custody for more than a month and has done nothing during that period to seek here release from detention, has failed to explain why this application had to be heard within a matter of days after it was issued.

"Fundamentally, [Magudumana] has failed to explain why she will not be afforded substantial redress at the hearing in due course."

- Karyn Maughan  

01 June 12:16

NPA, police heads of argument:

"Although it is accepted that issues pertaining to personal liberty may, in appropriate circumstances, require to be determined with some measure of promptitude, this is not one such case." 

- Karyn Maughan 

01 June 12:13

Snellenburg says Magudumana's application fails to meet the requirements for her to show that her case should be heard on an urgent basis. Worse still, he says, she offers no explanation for why she was content to remain in jail since 13 April but is now challenging her detention on an urgent basis now - and aiming to "get mileage" from it.

- Karyn Maughan

01 June 12:06

Snellenburg points out that Magudumana had legal representation since 14 April and questions why she only launched this challenge to her arrest, on an urgent basis, late last month.

- Karyn Maughan

01 June 12:04

Advocate Neil Snellenburg SC now argues for the NPA and the police. He begins by describing Magudumana's urgent application as "an abuse of process".

- Karyn Maughan

01 June 12:03

We resume. 

01 June 11:39

The NPA and police's advocate will respond to Katz's argument after a 20 minute break.

- Karyn Maughan

01 June 11:38

Arguing on behalf of Magudumana, Katz asks that the High Court grant the following orders:

"It is declared that [Magudumana's] apprehension and arrest in Tanzania by officials of the second and sixth respondents [police and Home Affairs], as well as her subsequent forced return to the Republic of South Africa is inconsistent with the Constitution of the Republic of South Africa, 1996, unlawful and invalid. 

"It is declared that [Magudumana's] arraignment in the proceedings under case number 20A/113/23 before the fourth respondent [magistrate presiding over the Bester escape trial] is inconsistent with the Constitution of the Republic of South Africa, unlawful and void.

"It is declared that any and all warrants issued by [magistrate presiding over the Bester escape trial] in respect of [Magudumana], are inconsistent with the Constitution, unlawful and without legal effect.

"It is declared that [Magudumana] is entitled to be discharged from detention, and that the fifth respondent [head of the prison where Magudumana is being held] is directed to take such steps as to ensure that she is immediately discharged from the Bizzah Makhate Correctional Centre in Kroonstad."

- Karyn Maughan

01 June 11:25

Katz says the evidence given by government - and statements made by Ministers - clearly backs up Magudumana's "disguised extradition".

- Karyn Maughan

01 June 11:14

Katz is an international law specialist. Commenting on the state's process in bringing Magudumana back to South Africa, he says he's "never seen anything like this".

- Karyn Maughan

01 June 11:12

Katz says there is no suggestion on the evidence given by the SA government that Magudumana consented to her unlawful deportation. He says she had "no clue" about what her rights were. (The police have claimed that Magudumana told "all and sundry" that she wanted to go back to SA to see her children.)

- Karyn Maughan

01 June 11:02

According to the state, the police, NPA and Home Affairs delegation indicated they would wait for Tanzania to provide direction on the route that should be followed prior to launching potential extradition proceedings. Tanzania then issued the "prohibited immigrants" notice used to deport Magudumana.

Katz says this is legally unacceptable.

- Karyn Maughan

01 June 11:00

Katz refers to the fact that police, NPA and Home Affairs officials claimed to be in Tanzania to "identify" Bester and Magudumana. He tells Loubser that this is clearly not true and points out that Bester and Magudumana's fingerprints were sent to South Africa for identification.

- Karyn Maughan

01 June 10:57

Katz now refers to SAPS' argument that Magudumana was only formally arrested when she landed in Lanseria. Home Affairs Minister Aaron Motsoaledi has also stressed that the Tanzanian government insisted that Magudumana must be handed over to immigration officials, not SA police, as doing so would amount to an unlawful rendition.

- Karyn Maughan

01 June 10:54

Magudumana heads of argument: 

"The SAPS and NPA respondents' denial of an arrest fails to have regard to the fact that [Magudumana] could not elect to leave Tanzania to any country. She was forced to return to South Africa by immigration and/or SAPS officials who took custody of her, and exercised control over her movement. In doing so, there can be no doubt that the respondents [NPA, police, Home Affairs] arrested and detained her following the 'handing over'". 

- Karyn Maughan 

01 June 10:52

Magudumana heads of argument: 

"The purpose of deportation is simply to remove a prohibited immigrant from the country in which their presence is unlawful. Deportation is not concerned with where the prohibited immigrant goes to. This is the essential difference between deportation and extradition. The latter is concerned with where the sought person is returned; the former is not." 

- Karyn Maughan  

01 June 10:51

Katz reiterates that there is no such thing as "South African soil" in Tanzania.

- Karyn Maughan

01 June 10:44

Katz says Home Affairs Chief Director of immigration services Modiri Matthews is also wrong to argue that he was able to exercise SA immigration law powers in Tanzania, because he was on "South African soil" in the SA High Commission in Tanzania. He also says Matthews sought to use powers that were only applicable to him in SA - and applied to the ability of immigration officials to question the citizenry of suspected illegal immigrants.

- Karyn Maughan

01 June 10:37

Judge Phillip Loubser asks whether the "prohibited immigrant" notice given to Magudumana referred to any destination. No, Katz says, adding that it instructed her to get out of Tanzania within three days. He adds that the use of the term "hand over" by officials is one used in relation to extraditions, not deportations.

- Karyn Maughan

01 June 10:29

Katz now takes the court to evidence given by Home Affairs and SA High Commission in Tanzania, which explicitly refers to an "agreement" between SA and Tanzanian officials that Magudumana be deported. There can be "no agreement" to deport someone to a specific destination, he says.

- Karyn Maughan

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