Nandipha Magudumana’s application for leave to appeal the Free State high court ruling that she had consented to return to South Africa, has been dismissed with costs.

Magudumana had asked the court in May to declare her arrest in Tanzania and extradition to South Africa unlawful. She was arrested alongside escaped convict Thabo Bester and currently faces several charges relating to the escape.

Read more in Daily Maverick: Thabo Bester and Nandipha Magudumana back in SA and behind bars

She said that she was unlawfully extradited and wanted the court to order that she be released from custody and to rule that the Bloemfontein Magistrates’ Court (where she is facing several charges, including fraud, aiding an escape and violating dead bodies) does not have jurisdiction to try her.

On 5 June, Judge Phillip Loubser found that Magudumana had indeed been extradited without process, but that she had consented to board the chartered plane that brought her back to South Africa.

Magudumana then lodged an application for leave to appeal in the Supreme Court of Appeal (SCA). She wanted the SCA to test whether she could have consented to an unlawful extradition.

On Tuesday, Judge Loubser dismissed her application, finding that it has no reasonable prospect of success.

“It was contended on behalf of the applicant that consent may not be given to unconstitutional conduct, because it would undermine the doctrine of objective constitutional invalidity,” said Judge Loubser.

Magudumana had also argued that Loubser had failed to declare the conduct of South African officials in Tanzania unconstitutional.

But Loubser said that there was no mention of constitutional challenge in the original notice of motion. Magudumana had simply said she wanted the court to declare her return to South Africa wrongful and unlawful.

He said that Magudumana had only mentioned constitutionality in her replying affidavit. “Despite this, the notice of motion was never amended,” he said.

Loubser said he could not give Magudumana relief that was never sought.

In her application for leave to appeal, Magudumana had argued that her consent was not proper consent; it was not in writing or unequivocal, and it could not override an unlawful act.

But Loubser disagreed and maintained that Magudumana had voluntarily returned to South Africa by saying that she wanted to return home to her children.

“I am not persuaded that another court would come to a different conclusion,” he said.

Magudumana is expected to appear in the Bloemfontein Magistrates’ Court on 8 August to face charges related to assisting Thabo Bester’s escape. DM

First published by GroundUp.