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[2023] ZAFSHC 223
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Magudumana v Director of Public Prosecutions, Free State and Others (2484/2023) [2023] ZAFSHC 223 (5 June 2023)
FLYNOTES:
CRIMINAL – Extradition – Removal outside processes –
Consent to removal – Arrested in Tanzania
and transported to
South Africa – Seeking that arrest and detention be declared
wrongful and unlawful – Contention
that extradition
disguised as a deportation is not a lawful mechanism for return of
sought persons – Whether evidence
exists that South African
officials colluded with Tanzanian officials or had made an
agreement with them to deport applicant
– Consented to
removal from Tanzania to South Africa because she wanted to return
to be with her children – Application
dismissed.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 2484/2023
In
the matter between:
NANDIPHA
MAGUDUMANA
Applicant
and
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
FREE
STATE
1
st
Respondent
THE
MINISTER OF THE SOUTH AFRICAN
POLICE
SERVICES (N.O.)
2
nd
Respondent
CAPTAIN
FLYMAN
3
rd
Respondent
THE
PRESIDING MAGISTRATE (N.O.)
CASE
NUMBER 20A/113/23
MAGISTRATES
COURT BLOEMFONTEIN
4
th
Respondent
THE
HEAD OF THE BIZZAH MAKHATE
CORRECTIONAL
CENTRE: KROONSTAD
5
th
Respondent
THE
MINISTER OF HOME AFFAIRS
N.O.
6
th
Respondent
JUDGMENT
BY
:
PJ LOUBSER, J
HEARD
ON:
1 JUNE 2023
DELIVERED
ON:
5 JUNE 2023
[1]
This is the court’s judgment in the application launched by Dr.
Nandipha Magudumana
against the Director of Public Prosecutions, the
Minister of Police, police officer Captain Flyman, the Presiding
Magistrate in
Bloemfontein Case Number 20A/113/23, the Head of the
Bizzah Makhate Correctional Centre in Kroonstad and the Minister of
Home Affairs.
[2]
The applicant is said to be the girlfriend of the convicted and
sentenced rapist and
murderer, Thabo Bester, who was serving his
sentence in the G4S Prison in Bloemfontein before his sensational
escape from that
correctional institution in May 2022. A number of
suspects who are implicated in the escape have already been arrested
and are
currently appearing in the Bloemfontein Magistrate’s
Court on provisional charges of defeating the ends of justice,
violation
of a body, aiding and abetting an inmate to escape from
lawful custody, corruption and arson. The applicant is one of those
appearing
in the Magistrate’s Court on the provisional charges
mentioned. She and Bester were apprehended in Tanzania and
brought
back to South Africa to face charges relating to Bester’s
escape. It is the circumstances of her arrest and transportation
to
South Africa that has prompted the applicant to launch this
application. The application was made on an urgent basis. The
Presiding
Magistrate and the Head of the Correctional Centre in
Kroonstad have filed a notice to abide by the decision of the court,
while
the remainder of the respondents are strenuously opposing the
application, including the alleged urgency of the matter.
[3]
In the Notice of Motion, the applicant is seeking the following
orders from this court:
that the application be heard as an
urgent application, that it be declared that her apprehension, arrest
and abduction in Tanzania,
her subsequent transportation to South
Africa and her purported arrest and detention pursuant thereto, be
declared wrongful and
unlawful. Further, that it be declared
that her arraignment before the Bloemfontein Magistrate is a nullity
and that the
proceedings before the Magistrate be set aside.
Finally, that it be directed that the orders and warrants by the
Magistrate
in terms whereof the applicant is detained in the
Kroonstad Correctional Centre, are null and void, and that it be
declared that
the applicant is entitled to be discharged from
detention and that the Head of the Correctional Centre in Kroonstad
be directed
to immediately discharge the applicant from further
detention. In the last prayer of the Notice of Motion the
applicant moves
for costs against such respondents as may oppose the
application.
[4]
As for the issue of urgency, it must be understood that in the normal
course of business,
certain time frames are applicable to all
applications brought in the High Court. For instance, it is
provided in Rule 6
of the Uniform Rules of Court that an applicant
must afford the respondent at least 5 days to notify the applicant
whether he intends
to oppose the application, and if he does so, he
must, within a further 15 days, deliver his answering affidavit.
However,
when a matter is alleged to be urgent in nature, Rule 6
provides for a deviation from such timeframes. Rule 6(12)
provides
that in such cases, the court may dispose with the forms and
service provided for in the rules, and that it may then dispose of
the matter at such time and place and in such manner and in
accordance with such procedure as it deems fit.
[5]
Before a court follows such a course, it must be satisfied that the
applicant has
complied with the requirements set out in Rule 6(12(b),
namely and I quote “the applicant must set forth explicitly the
circumstances
which is averred render the matter urgent and the
reasons why the applicant claims that applicant could not be afforded
substantial
redress at a hearing in due course”. In the present
application, it appears from the papers before me that the applicant
has been in South Africa since 13 April 2023, after she was arrested
in Tanzania. From 14 April 2023 onwards she consulted
with her
legal representatives and she has since appeared in the Magistrate’s
Court where she has the right to apply for
bail. This application was
only launched on 19 May 2023.
[6]
In her founding papers, the applicant only relied on her alleged
detention as the
explicit circumstances which render the matter
urgent. At the same time, she made no mention of any reasons
why she could
not be afforded substantial redress at a hearing in due
course. Strictly speaking, she has therefore not complied with
the
requirements for the matter to be heard on an urgent basis.
In addition, she also failed to explain why she waited from 14
April
2023 until 19 May 2023 to launch her application on an urgent basis.
I have little hesitation in finding that, under
normal circumstances,
courts of law would be loath to enrol and to deal with such an
application on an urgent basis. The
court would rather opt to
strike the application from the roll due to a lack of urgency.
[7]
However, I am of the view that we are not seized here with an urgent
application brought
under normal circumstances. This
application is rendered different by the fact that it was launched by
a person who finds
herself in detention and who disputes the legality
of her detention on different grounds. This is despite the fact
that the
applicant has afforded the respondents only three days to
oppose the application, and to place their version before the court.
I find support for my view in this respect in the judgment of Silva v
Minister of Safety and Security
1997 (4) SA 657
(WLC) where the court
stated that a detained person has an absolute right not to be
deprived of his freedom for one second longer
than necessary by an
official who cannot justify his detention. And in Arse v
Minister of Home Affairs
2012 (4) SA 544
(SCA) at paragraph 10 the
Supreme Court of Appeal has held that this passage in the Silva case
cannot be overstated. Therefore,
despite the shortcomings in
the applicant’s application in respect of urgency, I regard it
in the interests of justice to
hear the application on an urgent
basis, and it is accordingly enrolled as such.
[8]
This brings me to the affidavits filed in this application and the
facts of the matter
as presented by the respective parties. In
her founding affidavit the applicant states that on 6 April 2023 she
was arrested
in Tanzania by members of the South African Police and
forcefully abducted. On the evening of 12 April 2023 she was
blindfolded
and taken to an airport by members of the South African
Police, where two uniformed members of the South African Police
awaited
her arrival. They took her in a kombi to an aircraft,
where she was ordered to get into the aircraft. Inside the
aircraft
she found four members of the South African Defence Force,
and she then sat in the aircraft flanked by members of the South
African
Defence Force and the South African Police, she says.
They then flew to Lanseria Airport in South Africa, from where she
was taken to Bloemfontein where she appeared in the Magistrate’s
Court.
[9]
The applicant further states that she has not been found to be an
illegal immigrant
by any court in Tanzania, nor has she been deported
by any such court to South Africa. Her arrest and deportation
from Tanzania
to South Africa therefore amounted to an illegal
abduction, she states. This then, was the case presented by the
applicant
and which case she respondents were called upon to meet in
their answering affidavits.
[10]
The respondents strongly deny in their answering affidavits that the
applicant was ever arrested
by South African policemen in Tanzania,
and that the applicant was abducted from that country. Their
version of the events
consists of the following: On 8
April 2023 the South African Police received information that Bester
and the applicant
were apprehended in the city of Arusha in Tanzania
by the Tanzanian authorities. At that point in time, a warrant
for the
arrest of the applicant had already been issued in South
Africa, and she and Bester were therefore wanted fugitives. A
multi-department
team was assembled in Pretoria to travel to Tanzania
to deal with the matter. This team consisted of high ranking
police
officers, a member of Interpol, a member of Home Affairs, a
member of Correctional Services and a Deputy Director of Public
Prosecutions.
[11]
This team then flew to Tanzania on 9 April 2023 in an airplane of the
Police, and arrived at
Arusha late at night. The team met with
the Tanzanian authorities the next day. They were informed that
Bester and
the applicant had entered and remained in Tanzania without
legal documentation and were thus not legally in Tanzania. They
were further informed that, once the identities of Bester and the
applicant had been confirmed, the Government of Tanzania would
advise
on the further handling of the matter. On their part the South
Africans informed the Tanzanians that no extradition
processes had
been initiated as yet by South Africa because South Africa first had
to be appraised of the decision of the Tanzanian
Government in the
matter. If the decision was that the extradition route should
be followed, then South Africa would initiate
such a process.
[12]
Some members of the South African team then visited Bester and the
applicant at the facility
where they were detained under control of
the Tanzanian Tourist and Diplomatic Police Division. After
their identity was
confirmed, the applicant and Bester were offered
consular services by the South Africans, which included legal
assistance.
They both declined such assistance and services.
[13]
On 12 April 2023 the Tanzanian officials informed the South African
team that their government
had decided to deport Bester and the
applicant as they had been declared prohibited immigrants in
accordance with Tanzanian laws.
The South Africans were also
informed that, since South Africa had been ascertained as the country
of origin of the two individuals,
they would be handed over by the
Tanzanian authorities to the South African High Commission in
Tanzania so that they could be removed
from the territory of
Tanzania.
[14]
The South African High Commission then engaged the South African
Department of Home Affairs regarding
the removal of Bester and the
applicant. This caused officials from that department to board
a plane to Tanzania in order
to attend to the matter. They were
accompanied by members of the Police because Bester was a convicted
rapist and murderer,
and the Police therefore provided escort
services to the department’s officials. The respondent
emphasize in their affidavits
that the Police members did not travel
to Tanzania to arrest the applicant. The respondents also add
that the Tanzanian Ministry
of Home Affairs had made it clear that it
does not cover the costs of deportation of illegal immigrants where
the countries of
origin are able to arrange for their deportation.
[15]
The Home Affairs plane landed in Tanzania late in the evening of 12
April 2023. At the
airport, the applicant and Bester were
handed over to the South African High Commission by the Tanzanian
Ministry of Home Affairs.
Shortly thereafter, the South African
High Commission handed them over to an immigration official of the
South African Department
of Home Affairs, and they were transported
back to South Africa in the plane of Home Affairs. The plan
departed the airport
in Tanzania shortly after midnight the same
evening. The next day, 13 April 2023, the plane touched down at
Lanseria airport
in Gauteng, and the applicant was arrested by the
South African Police upon her arrival at the airport.
[16]
The respondents also point out in their answering affidavits that, at
the time the applicant
was handed over to the Department of Home
Affairs by the South African High Commission in Tanzania, she did not
offer any resistance
or protest. In fact, she informed all and
sundry that she wanted to return to South Africa to her children.
She was
also not blindfolded, as alleged by her.
[17]
By now it should be obvious that there is a massive and material
factual dispute between the
parties as to the arrest of the applicant
in Tanzania and as to the circumstances under which she was
transported back to South
Africa. The manner in which a court
will deal with an application where there is a material dispute of
fact and no request
for the hearing of oral evidence, has become
established in our country over the past six decades. In such
cases a final
order will only be granted on Notice of Motion if the
facts as stated by the respondent, together with the facts alleged by
the
applicant that are admitted by the respondent, justify such an
order. This formula has the effect that applications having
a
material dispute of fact, will be adjudicated on the version put up
by the respondent, unless that version is palpably implausible,
far-fetched or so clearly untenable that such version could safely be
rejected on the papers. In the present matter, where
I cannot
find that the version of the respondents is far-fetched or clearly
untenable, the application therefore must be decided
on the version
presented by the respondents.
[18]
At this junction it is appropriate to briefly refer to the replying
affidavit of the applicant.
In this affidavit the applicant
contends that extradition disguised as a deportation is not a lawful
mechanism for the return of
sought persons, because it is
inconsistent with both the Constitution and international law.
The only lawful mechanism for
the return of sought persons is to
follow extradition procedure, and not a mere deportation. She
further says in this affidavit
that she was quite clearly arrested in
Tanzania by South African officials and forcefully returned to South
Africa. She further
points out that the South African
delegation that was sent to Tanzania had the sole intention to
collude with the Tanzanian authorities
to ensure her deportation to
South Africa. There was collaboration between the two countries
to deport her without following
extradition procedures. Proof
of this lies in the fact that the plane that was to transport her
back to South Africa, arrived
at the airport in Tanzania within hours
or minutes after the prohibited persons notice was issued by the
Tanzanian authorities.
[19]
The applicant further insisted that she was forcefully placed on the
South African plane without
affording her any choice as to how she
should leave or where she should go. She further referred the
court to media statements
by the Minister of Police, Brigadier Mathe,
and by the SA Government, which she says placed beyond any doubt that
her arrest in
Tanzania was planned by South Africa. The
delegation that was sent to Tanzania, was only sent to secure her
deportation,
she says. According to Government statements, the
delegation was clearly despatched to negotiate and deliberate with
the
Tanzanian officials to conclude her deportation. The
applicant concluded in this affidavit that if her disguised
extradition
was unlawful, then it follows that no criminal
jurisdiction may be exercised against her in a South African court.
Lastly,
she bluntly denies the allegation that she had not objected
when handed over to the officials of Home Affairs, or that she had
indicated that she wanted to return to South Africa to her children.
[20]
Not surprisingly, some of the applicant’s allegations in the
replying affidavit became
the subject matter of an application filed
by the Minister of Home Affairs to strike out those allegations on
the basis that they
constitute new matter that are inadmissible
evidence in the circumstances. The application to strike out is
premised on the
general rule that all the necessary allegations on
which the applicant relies must appear in the founding affidavit, and
that the
applicant will not be allowed, generally, to supplement the
founding affidavit by adducing new evidence in the replying affidavit
to the prejudice of the respondent.
[21]
The objections of the Minister are therefore directed at the
applicant’s reference to a
disguised extradition in her
replying affidavit for the first time. It is further directed
at the media statements referred
to earlier, and lastly is it
directed at her new evidence that she had instructed a lawyer in
Tanzania to declare her detention
unlawful before she was flown back
to South Africa.
[22]
I do not think that there is much merit in the objection to the
applicant’s reliance on
an unlawful disguised extradition in
the form of deportation, which appears in her replying affidavit.
This is so because
she had already alleged in her founding affidavit
that no documentation existed to show that there was an extradition.
She
also mentioned there that none of the procedures for making an
extradition request had been followed. It therefore appears
that the reference to a disguised extradition in the replying
affidavit was nothing more than the use of refined technology to
say
the same thing that she has already intimated in her founding
affidavit. The objection in this respect cannot succeed.
[23]
The objection concerning the new evidence relating to the media
statements were already publicly
published on 8, 10 and 13 April
2023, that is more than a month before the application was launched.
There is no explanation
in the replying affidavit why these
statements were not already referred to in the founding affidavit,
which was signed by the
applicant on 18 May 2023. These
statements are obviously prejudicial to the Minister of Home Affairs,
because the replying
affidavit was filed in the late afternoon of
Tuesday 30 May 2023, per the order of this court, while the
application was heard
in open court on Thursday 1 June 2023. It
speaks for itself that there was no time left for the Minister and
the other officials
to consult with their legal teams and to give
instructions before the hearing of the application. It follows
that all references
to the media statements by the various Government
officials in the replying affidavit are hereby struck out.
[24]
The same applies for the new evidence that the applicant had
instructed a lawyer in Tanzania
to challenge her detention there
before she was brought back to South Africa. This evidence does
not appear in the founding
affidavit, and is prejudicial to the
respondents on the same grounds already mentioned. Therefore,
her reference to her lawyer
in Tanzania in the replying affidavit is
hereby also struck out.
[25]
I now turn to the law concerning extraditions and deportations.
At the hearing of this
application, Mr Katz appearing for the
applicant, dealt extensively with the legal principles in question,
and he provided the
court with many references and authorities both
from local soil and from the international arena dealing directly
with this issue,
and I thank him for his assistance in this respect.
I do not intend to refer to all these authorities because they all
appear
to be in harmony as far as the basic principles are concerned,
and because this court unreservedly associates itself with the views
expressed in these authorities. I will therefore refer to
authorities only here and there for purposes of illustration.
[26]
It appears to be common cause on the papers before me that the
applicant was returned to South
Africa to face charges outside
extradition processes. South Africa’s pre-constitutional
and post-constitutional jurisprudence
makes it clear that disguised
extraditions in the form of deportation are unlawful, and that the
receiving State may not exercise
criminal jurisdiction over the
target of an unlawful disguised extradition. See for instance
S
v Ebrahim
[1991] ZASCA 3
;
1991 (2) SA 553
(A).
If officials from one State
were permitted to extract fugitives from justice through a
deportation, it would render extradition
proceedings meaningless and
it would undermine the constitutional obligations of the respondents
in this case to act lawfully both
at home and abroad.
[27]
In
Horseferry Road Magistrate’s Court Ex Parte Bennet
1 AC
42
(1993)
the House of Lords in the United Kingdom held that the
courts of England will not exercise criminal jurisdiction over an
accused
person where officials in the UK colluded with officials in
South Africa for the deportation of Bennet in circumstances where
extradition
proceedings were available for his surrender to the UK.
It was further held that agreements to conspire the deportation of
individuals wanted to stand trial for criminal conduct threatens
basic human rights and the rule of law. This judgment of
the
House of Lords correctly sums up the legal position and has been
referred to in many cases on a wide front.
[28]
Here in South Africa, the Constitutional Court has stated the
following in
Mohamed and Another v President of the RSA and Others
[2001] ZACC 18
;
2001 (3) SA 893
(CC): Deportation and extradition serve
different purposes. Deportation is directed to the removal from
a State of
an alien who has no permission to be there.
Extradition is the handing over by one State to another State of a
person convicted
or accused there of a crime, with the purpose of
enabling the receiving State to deal with such person in accordance
with the provisions
of its law. Deportation is usually a
unilateral act while extradition is consensual.
[29]
The crucial question in this application is therefore whether there
is evidence to the effect
that South African officials had colluded
with Tanzanian officials, or had made an agreement with them to
deport the applicant
in circumstances where extradition proceedings
were available for her surrender to South Africa. Here it needs
mentioning
that there in an SADC Protocol on Extradition in existence
between South Africa, Tanzania and other African countries, providing
for the extradition of persons wanted for prosecution. The
further question is whether there was a handing over by Tanzania
to
South Africa of the applicant with the purpose of enabling South
Africa to deal with her in accordance with the provisions of
its
law. If this was the case, it would point to extradition
without process, and not a deportation.
[30]
In order to consider these questions, the court has to revert to the
version presented by the
respondents, as discussed earlier herein.
According to the respondents, when the SA delegation arrived in
Tanzania after
Bester and the applicant were arrested there, they
were informed by the Tanzanians on 10 April 2023 that their
government would
advise on the further handling of the matter.
The Tanzanians were then told by the South Africans if the decision
was that
the extradition route should be followed, then South Africa
would initiate such a process. On 12 April 2023 the South
Africans
were informed by the Tanzanian officials that their
government had decided to deport the two individuals because they had
been
declared prohibited immigrants in accordance with Tanzanian
laws. The South Africans were further informed that Bester and
the applicant would be handed over to the SA High Commission in
Tanzania so that they could be removed from the territory of
Tanzania.
[31]
The respondents further deny that the applicant was ever arrested by
South African Police members
or abducted in Tanzania, as alleged by
the applicant in her founding papers.
[32]
At this point I should mention that the Tanzanian decision to deport
stems from
section 25(2) (c) of the Tanzanian Immigration Act
which provides that any person arrested under the provisions of
subsection (1) shall without delay, be brought before a Magistrate,
except that where such person has been declared a prohibited
immigrant in Tanzania, he may be placed in custody until he boards
a
ship or aircraft or obtains any other means of transport conveying
him to any place outside of Tanzania.
[33]
Me Neo Moroeng of the South African High Commission in Tanzania says
in her supporting affidavit
in the papers of the Minister of Home
Affairs that the first secretary of the High Commission was informed
on 11 April 2023 by
Tanzanian authorities in Arusha that it was
decided by Tanzania to declare Bester and the applicant prohibited
immigrants and liable
to be deported back to their country of origin,
South Africa. But she then mentions that “the agreement
between Tanzanian
authorities and the High Commission to deport them
back to South Africa was reached at the premises of the High
Commission”.
These two statements by Me Moroeng are obviously
contradictory because it cannot be, on the one hand, that Tanzania
has decided
to deport them, then on the other hand, that there was an
agreement between the two countries that they should be deported.
She also does not inform when this agreement was concluded, and who
were present when it was concluded. The result is that
this
court cannot rely on her evidence in this regard. On the basis
of the other affidavits filed by the respondents, the
court has to
accept that the decision to deport was taken by the Tanzanian
authorities and nobody else.
[34]
If the applicant wants to take issue with the Tanzanian decision to
deport her to her country
of origin, South Africa, whereas the Act
provides that she may decide to go to any place outside Tanzania,
then she should approach
the courts in Tanzania. This court
does not have any jurisdiction to decide such an issue.
[35]
According to the Minister of Home Affairs, he received the news of
the declaration of Bester
and applicant as prohibited immigrants
liable to be deported back to south Africa in terms of Tanzanian
immigration laws on 12
April 2023. The Home Affairs department
was then required, he says, to provide air transportation for the
deportation of
Bester and the applicant. He does not say who
made this request but it was probably the Tanzanian authorities who
had indicated
that they do not cover the cost of deportation.
He goes on to say that it was decided that their handover to the
South African
High Commission in Tanzania, would be done in line
with,
inter alia,
Tanzanian immigration laws. He does not say
who made this decision, but he says that on the same day, 12 April
2023, he despatched
a private aircraft to Tanzania as requested by
the Tanzanian Immigration Division.
[36]
According to the affidavit filed on behalf of the Director of Public
Prosecutions, the Minister
of Police and Captain Flyman, the plane
despatched by the Minister of Home Affairs, landed late that evening
in Tanzania, where
Bester and the applicant were handed over to the
South African High Commission in the person of Me Moroeng, who in
turn handed
them over to Home Affairs immigration officers for
deportation to South Africa.
[37]
Certain documentation were appended to the respondents’
affidavits. The first is a Notice
to Prohibited Immigrant in which
the applicant is ordered by the Tanzanian Ministry of Home Affairs to
leave Tanzania within three
days by escort. Again, if the
applicant wants to take issue with this notice on the basis that she
was ordered to leave within
3 days by escort, she must do so in
Tanzania and not here in South Africa. Then there is a written
notification by the Tanzanian
Ministry of Home Affairs to the High
Commission of South Africa, evidencing the handing over of Bester and
the applicant “to
you for your further procedures”.
Lastly there is a confirmation of handover by the High Commission to
the South African
immigration officials. According to the
respondents, these two last mentioned documents were exchanged by the
relevant parties
at the airport before the departure of the aircraft
back to South Africa on the late evening of 12 April 2023.
[38]
At the hearing of the application, it was contended by counsel
representing the respondents that
the officials on the South African
side did nothing wrong and that they only acted on the direction of
the Tanzanian officials.
The applicant should therefore
litigate in Tanzania and not in South Africa, the argument went.
I do not agree. It
is patently clear, on their own version,
that the respondents willingly participated in the handing over event
at the airport believing
such handing over was done in terms of
international law and in terms of the law in Tanzania.
Moreover, the respondents were
aware that the applicant was handed
over for purposes of prosecution in South Africa. What they did
not realize, was that
such handing over of the applicant was in fact
an extradition without any process and not a deportation. This
is what the
law says, as we have seen hereinbefore.
[39]
But, this is not the end of the matter. The answering affidavit
on behalf of the Director
of Public Prosecutions, the Minister of
Police and of Captain Flyman, states that when the applicant was
handed over at the airport
by the South African High Commission to
the officials of Home Affairs, she did not, be it verbally or
otherwise, offer any resistance
or protest. On the contrary,
she informed all and sundry that she wanted to return to South Africa
to her children, it is
said in the affidavit.
[40]
In
S v Mahala and Another
1994 (1) SACR 510
(A)
the Appellate
Division held that where the transportation of a person investigated
for criminal offences from a foreign jurisdiction
to South Africa is
consented to by such a person, there is no violation of such person’s
fundamental human rights or international
law and that being so, the
South African Criminal Court will have jurisdiction over such a
person. In
S v December
1995 (1) SACR 438
(A)
the
appellant contended that he was arrested and abducted from the Ciskei
by the South African Police, and relying on
S v Ebrahim,
referred to above, he argued that the Criminal Court lacked
jurisdiction to try him. In that case the court found that
where
the appellant was not forcibly abducted and his return to South
Africa was voluntarily, there was no infraction of South African
or
public international law – consequently, the decision in
Ebrahim’s case did not preclude a South African court from
exercising jurisdiction to try the appellant.
[41]
In the Mohamed case referred to earlier, the consent of Mohamed to
his removal to the United
States also became an issue of contention.
In that case, he was removed in order to face a criminal charge where
he could
be sentenced to death. The Constitutional Court
remarked that it is open to doubt whether a person in Mohamed’s
position
can validly consent to being removed to a country to face a
charge where his life is in jeopardy. The court, however,
assumed
without deciding, that a proper consent of such a nature
would be enforceable against Mohamed. To be enforceable,
however,
it would have to be a fully informed consent and one clearly
showing that the applicant was aware of the exact nature and extent
of the rights being waived in consequence of such consent, the court
stated.
[42]
In the present case I have no hesitation in finding that the
applicant was well aware, at the
time of her handing over, of the
charges that could be levelled against her upon her arrival in South
Africa. She nevertheless
consented to her removal from Tanzania
to South Africa because she wanted to return to be with her
children. At the very
least she had willingly acquiesced to her
transportation back to South Africa. Based on the decisions of
the Appellate Division
in December and Mahala, to which I have
referred, and which I am bound to follow, I find that the application
cannot succeed.
[43]
The following order is made:
The
application is dismissed with costs, including the costs of two
counsel where so employed by respectively the 1
st
to 3
rd
respondents and the 6
th
respondent.
_______________
P.J.
LOUBSER, J
Counsel
for Applicant:
Adv. A. Katz SC
Instructed
by:
Machini Motloung Inc Attorneys
101 Olympus Drive
PHG Office Suite
Helicon Heights
Bloemfontein
Counsel
for 1
st
, 2
nd
and 3
rd
Respondents:
Adv. N. Snellenburg SC
Instructed
by:
Offices of the State Attorney
11
th
Floor, Fedsure Building
49 Charlotte Maxeke
Street
Bloemfontein
Counsel
for 6
th
Respondent:
Adv. P.J.J. Zietsman SC
Instructed
by:
Offices of the State Attorney
11
th
Floor, Fedsure Building
49 Charlotte Maxeke
Street
Bloemfontein