Nandipha Magudumana v Director of Public Prosecutions, Free State and Others

The appellant was the girlfriend of Thabo Bester, a convicted rapist and murderer who escaped from Mangaung Correctional Centre in May 2022. The appellant subsequently fled South Africa. In April 2023, she was located in Tanzania by Tanzanian authorities and brought back to South Africa by South African officials. She was arrested upon arrival at Lanseria Airport and prosecuted in the Bloemfontein Magistrates' Court for offenses related to Mr. Bester's escape. The appellant challenged the lawfulness of her arrest and deportation from Tanzania, alleging she was unlawfully abducted by South African Police Service (SAPS) members in Tanzania. She applied to the High Court for her release, contending her arrest and return to South Africa was unlawful and amounted to a disguised extradition. The respondents contended that she was arrested by Tanzanian authorities for being in Tanzania illegally, declared a prohibited immigrant, and handed over to South African authorities for deportation. They claimed she consented to return to South Africa to be with her children.

• Whether the appellant was arrested in Tanzania by members of SAPS or Tanzanian authorities
• Whether the appellant made out a case that her handing over by Tanzanian authorities to South African officials and her transportation to South Africa constituted an unlawful disguised extradition
• Whether the appellant consented to her deportation to South Africa
• Whether a new case was introduced in the replying affidavit regarding disguised extradition
• Whether relief could be sought against the Minister of Home Affairs despite him not being cited in the original notice of motion

The appeal was dismissed with costs, including costs of two counsel where so employed.

1. In an application alleging unlawful arrest and detention, the applicant must establish not only that their liberty was interfered with, but also identify the party responsible for that interference before the onus shifts to that party to justify the deprivation (applying Zealand v Minister for Justice). 2. Where an applicant specifically alleges arrest by a particular party (SAPS in Tanzania) but the evidence establishes arrest by a different party (Tanzanian authorities), and the matter is decided on the respondent's version under Plascon-Evans principles, the applicant fails to make out a case against the cited respondent. 3. Relief cannot competently be granted against a party (Minister of Home Affairs) who was not cited in the original notice of motion and against whom no relief was sought in the founding affidavit, even on appeal, without proper amendment and consideration of prejudice, regardless of subsequent joinder to proceedings. 4. Procedural fairness and audi alteram partem require that where new relief is sought against a party for the first time on appeal, that party must have had an opportunity to respond, particularly where the original applicant expressly declined to seek relief against that party.

The majority judgment noted but expressly declined to decide whether the appellant's deportation constituted an unlawful disguised extradition, finding it unnecessary given the conclusion on other grounds. The majority also did not express a view on whether the appellant voluntarily consented to return to South Africa. The dissenting judgment by Makgoka JA made extensive obiter observations including: (1) That diplomatic premises are not regarded as territories of the sending State under international law; (2) That section 41 of the South African Immigration Act has no extraterritorial application; (3) That cooperation between States is a non-dispensable feature of extradition while unilateral action characterizes deportation; (4) That valid consent to waive rights in an extradition/deportation context must be fully informed, including information about pending warrants and available extradition safeguards; (5) That the decisions in S v Mahala and S v December may not align with constitutional values and their correctness is doubtful; (6) That where disguised extradition is established, courts should not be constrained by procedural missteps in granting effective constitutional relief; (7) Strong criticism of State conduct, emphasizing that "the State, as the repository of the rule of law, cannot be allowed to act unlawfully."

This case is significant in South African jurisprudence for several reasons: (1) It reinforces the principle that an applicant alleging unlawful arrest must establish the identity of the party who arrested them before the onus shifts to that party to justify the deprivation of liberty (Zealand v Minister for Justice principle); (2) It clarifies procedural requirements regarding seeking relief against parties in application proceedings, emphasizing that relief cannot be sought on appeal against a party not cited in the original notice of motion without proper amendment; (3) The dissenting judgment provides extensive analysis of disguised extradition under South African and international law, building on S v Ebrahim and engaging with the SADC Extradition Protocol; (4) It highlights tensions between effective prosecution of serious crimes and adherence to rule of law principles and international legal procedures; (5) The dissent's emphasis on informed consent requirements in extradition/deportation contexts develops the Mohamed jurisprudence; (6) The case demonstrates judicial disagreement on when new legal arguments can be raised in replying affidavits and on appeal.