Summary of Judgment

1. Introduction

The proceedings concerned an application for leave to appeal to the Supreme Court of Appeal against a prior judgment of the Free State Division of the High Court delivered on 5 June 2023. The present judgment (delivered 18 July 2023) determined whether the applicant satisfied the statutory threshold for leave to appeal.

The applicant was Nandipha Magudumana. The principal respondents were the Director of Public Prosecutions, Free State (first respondent), the Minister of the South African Police Service N.O. (second respondent), and Captain Flyman (third respondent). Additional respondents included the presiding magistrate N.O. (fourth respondent), the head of the Bizzah Makhate Correctional Centre (fifth respondent), and the Minister of Home Affairs N.O. (sixth respondent).

Procedurally, the matter followed the applicant’s earlier application in which she sought relief on motion to have her arrest and transportation from Tanzania to South Africa declared wrongful and unlawful. In the judgment of 5 June 2023, the court found that the applicant consented to her removal to South Africa, or at least willingly acquiesced in being transported there. The present proceedings were confined to whether leave to appeal should be granted under the applicable statutory standard.

The general subject-matter of the dispute was the lawfulness of the applicant’s return from Tanzania to South Africa, including whether it occurred by abduction, deportation, or a process characterised by the court as an extradition without due process, and whether the applicant’s conduct amounted to consent that defeated the unlawfulness alleged.

2. Material Facts

The court approached the matter on the basis that the earlier judgment (5 June 2023) had been decided in motion proceedings where material disputes of fact existed, and where the matter therefore had to be determined on the respondents’ version, together with any applicant allegations admitted by the respondents. The material facts relied on in the leave application were therefore those forming the foundation of the earlier decision as understood through that procedural lens.

On the respondents’ version, the applicant was not arrested in Tanzania by South African police, was not abducted, and was not blindfolded and forced to board an aircraft. Instead, the respondents’ account was that the applicant was arrested by Tanzanian authorities because she was not legally in Tanzania. Following that arrest, the Tanzanian government decided to deport her after she had been declared a prohibited immigrant under Tanzanian law.

The respondents’ version further stated that, after the deportation decision, the applicant was handed over at the airport to the South African High Commission, which in turn handed her to an immigration official of the South African Department of Home Affairs. She was then transported to South Africa in an aircraft associated with Home Affairs. During this process, the applicant did not resist or protest. The respondents also alleged that she expressed a desire to return to South Africa, including statements that she wanted to return to her children.

Although the court in the earlier judgment went further to find that the handing over was in fact an extradition without due process (rather than a deportation), the present judgment treated as decisive, for purposes of leave to appeal, the earlier factual finding that the applicant’s return was voluntary in nature, at least to the extent of willing acquiescence.

3. Legal Issues

The central legal questions for determination were framed by section 17(1) of the Superior Courts Act 10 of 2013, namely whether leave to appeal should be granted because the proposed appeal would have reasonable prospects of success, or because there existed some other compelling reason for the appeal to be heard, including potentially conflicting judgments.

Within that statutory framework, the application raised intertwined questions concerning the application of law to fact (in particular, the consequences of deciding motion proceedings on the respondents’ version where disputes of fact exist), and a more normative/value-laden contention advanced by the applicant concerning constitutional doctrine, namely whether consent can validate conduct said to be unlawful or unconstitutional, and whether the court ought to have made a declaration of constitutional invalidity in relation to the sixth respondent’s conduct.

A further issue concerned pleading and relief: whether the applicant had properly sought constitutional declaratory relief such that the court was obliged (or even permitted) to adjudicate constitutional invalidity and the consequences flowing from it.

4. Court’s Reasoning

The court commenced by identifying the governing threshold for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, emphasising that leave may be granted only where there are reasonable prospects of success or some other compelling reason for an appeal.

A central feature of the court’s reasoning was the procedural posture of the underlying matter. The earlier judgment (5 June 2023) had been decided on motion in the face of a material dispute of fact. The court reaffirmed the established approach that final relief in motion proceedings is granted only where the respondents’ stated facts, together with the applicant’s admitted allegations, justify the order. Consequently, where a material dispute exists, adjudication proceeds on the respondent’s version. On that approach, the court considered the applicant’s prospects on appeal to be lacking, because an appellate court would be unlikely to interfere with the factual platform upon which the earlier judgment had been decided.

Applying that approach, the court treated the respondents’ narrative as determinative: that the applicant was arrested by Tanzanian authorities, processed for deportation under Tanzanian law as a prohibited immigrant, handed to South African officials, and transported without resistance; and that she indicated a wish to return to South Africa. The court considered these facts sufficient to sustain the earlier finding of consent or willing acquiescence, and therefore viewed it as unlikely that an appellate court would reach a different factual conclusion.

The applicant sought to advance a constitutional argument to the effect that consent cannot be given to unconstitutional conduct, because it would undermine the doctrine of objective constitutional invalidity, and that the court erred by failing to declare the respondents’ conduct unconstitutional, with consequential implications including the costs order applicable in constitutional matters. The court rejected this as a basis for leave to appeal chiefly on pleading and remedial grounds. It reasoned that the notice of motion did not seek relief on a constitutional basis; instead, it sought to declare the arrest and transportation wrongful and unlawful, directed at alleged conduct of South African police in Tanzania. The constitutional characterisation (that an extradition disguised as a deportation was inconsistent with the Constitution) was raised only in the replying affidavit, and the notice of motion was not amended.

In support of the proposition that a court should not grant relief not sought, the court relied on Minister of Cooperative Governance and Traditional Affairs v De Beer and Another (2021) 3 All SA 723 (SCA), where the Supreme Court of Appeal held that relief had been granted that was never sought and that the High Court had ranged beyond what had been claimed. The court also relied on South African Transport and Allied Workers Union v Garvas 2013 (1) SA 83 (CC) for the principle that a party seeking a declaration of invalidity must properly and specifically place that issue before the court, and that only then is the court’s obligation under section 172(1)(a) of the Constitution engaged. On the court’s analysis, the facts and pleadings in the present matter did not “pave the way” for a constitutional declarator against the sixth respondent, so the argument about waiver of constitutional rights did not arise on the pleadings as framed.

The court then addressed the applicant’s submission that the matter raised a compelling reason for appeal because of alleged conflict with decisions dealing with consent, waiver, and rights. Reference was made to Spagni v Acting DPP and Others (2023) ZASCA 24 (case no 455/2022) and S v Shaba and Another 1998 (2) BCLR 220 (T). The applicant’s argument was that these authorities supported stricter requirements for consent (including that it must be in writing and unequivocal) and that certain rights are inalienable, suggesting inconsistency with the earlier judgment.

The court, however, distinguished those decisions by returning to the respondents’ version of what the applicant consented to. It was not the respondents’ case that the applicant consented to a “disguised extradition process” or that she consented in formal terms to any process; it was simply that she wanted to return to South Africa to her children and did not resist the process by which she was returned. On this view, the court considered the cited waiver/consent cases distinguishable because the “true nature” of the consent in issue was different from the kind of consent or waiver contemplated in those authorities.

Finally, the court referred to authorities discussed in the earlier judgment (including the “Mohamed-case” and the “Mahala and December-cases”) to support the proposition that where a person voluntarily returns to South Africa, there is no infraction of South African or public international law, and no violation of fundamental rights, and that those decisions had not been overruled. On the totality of the submissions, and in light of the factual findings underpinning the earlier judgment, the court concluded that the applicant had not demonstrated either reasonable prospects of success or another compelling reason to justify leave to appeal.

5. Outcome and Relief

The court dismissed the application for leave to appeal to the Supreme Court of Appeal.

The court ordered that the application for leave to appeal was dismissed with costs.

Cases Cited

Minister of Cooperative Governance and Traditional Affairs v De Beer and Another (2021) 3 All SA 723 (SCA).

South African Transport and Allied Workers Union v Garvas 2013 (1) SA 83 (CC).

Spagni v Acting DPP and Others (2023) ZASCA 24 (case no 455/2022).

S v Shaba and Another 1998 (2) BCLR 220 (T).

Legislation Cited

Superior Courts Act 10 of 2013, section 17(1).

Constitution of the Republic of South Africa, 1996, section 172(1)(a).

Rules of Court Cited

No rules of court were expressly cited in the judgment. The court applied the established approach applicable to motion proceedings where there is a material dispute of fact, requiring determination on the respondents’ version for purposes of final relief.

Held

The court held that the applicant failed to meet the requirements for leave to appeal under section 17(1) of the Superior Courts Act 10 of 2013, because there were no reasonable prospects of success on appeal and no other compelling reason warranting an appeal.

The court held further that the applicant’s constitutional complaint, including the contention that the court should have declared certain conduct unconstitutional, did not provide a viable basis for leave to appeal because constitutional declaratory relief was not properly sought in the notice of motion, and the matter as pleaded did not activate the court’s duty under section 172(1)(a).

The court accordingly dismissed the application for leave to appeal with costs.

LEGAL PRINCIPLES

The judgment applied the principle that in motion proceedings, where final relief is sought and there is a material dispute of fact, the matter is determined on the respondents’ version, together with those applicant allegations admitted by the respondents, and that this procedural rule strongly constrains the prospects of success on appeal where the outcome turns on that factual platform.

The judgment applied section 17(1) of the Superior Courts Act 10 of 2013 as setting a stringent threshold for leave to appeal, requiring either reasonable prospects of success or a compelling reason why the appeal should be heard.

The judgment applied the principle that a party seeking a declaration of constitutional invalidity must properly and specifically place that issue before the court; absent properly formulated constitutional relief, a court is not obliged to make, and should not make, a declaration of invalidity. In this context, the judgment applied the further principle that a court should not grant relief not sought in the notice of motion.

The judgment further applied the approach that authorities concerning waiver/consent must be evaluated in light of the nature and content of the consent on the accepted factual version, and that cases said to be in conflict may be distinguishable where the factual basis for “consent” differs materially.