Dr Nandipha Magudumana believes that the Supreme Court of Appeal will be able to determine whether her giving consent to return to the country ratifies the state’s actions.
The Free State High Court found that her arrest in Tanzania was unprocedural but dismissed with costs her application to get her arrest declared unlawful.
This was on the basis that she consented to be brought back to the country. Magudumana wants to be granted leave to appeal this verdict in the Supreme Court of Appeal.
Advocate Kessler Perumalsamy for Nandipha Magudumana has submitted that there are reasonable prospects of success that if granted leave to appeal to the Supreme Court of Appeal, they stand a chance to win the case.
Perumalsamy says there are compelling reasons concerning the applicability of consent to unconstitutional conduct. Her lawyer says there is inconsistency with the submission of Home Affairs and Police on how the process was done.
Perumalsamy adds that unconstitutional conduct cannot be rendered as constitutional by consent.
“Paragraph 78.8 says at the time when the applicant was handed over to the DHA by the South African High Commission, she did not, be it verbally or otherwise offer any resistance or protest. The applicant informed all that she wanted to return to South Africa to her children. That’s all my lord, nothing else. I accept that as invalid.”
Senior Counsel Neil Snellenburg, representing the police, says there is no evidence that Magudumana consented to an illegality after being arrested in Tanzania in April. Snellenburg says Magudumana’s attempt to approach the Supreme Court of Appeal should be dismissed.
He has added that Magudumana was willing to come back to South Africa especially for her children and her rights were not violated.
“We submit that you can never consent to an illegality and that’s because all constitutional enquiries are not subjective in nature, so consent in our view is inherently subjected, it requires the person getting it to say I’m ok with unconstitutional conduct.”
Judgment has been reserved to next week Tuesday.
Thabo Bester Saga | Judgment reserved in Magudumana’s appeal over Tanzania arrest:
