THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Reportable
Case No: 1196/2023
In the matter between:
NANDIPHA MAGUDUMANA APPELLANT
and
DIRECTOR OF PUBLIC PROSECUTIONS,
FREE STATE FIRST RESPOND ENT
MINISTER OF POLICE SECOND RESPONDENT
CAPTAIN TIEHO JOBO FLYMAN THIRD RESPONDENT
PRESIDING MAGISTRATE N O FOURTH RESPONDENT
HEAD OF BIZZAH MAKHATE
CORRECTIONAL CENTRE: KROONSTAD FIFTH RESPONDENT
MINISTER OF HOME AFFAIRS SIXTH RESPONDENT
Neutral Citation : Magudumana v Director of Public Prosecutions , Free State and
Others (1196/2023) [2025] ZASCA 62 (16 May 2025)
Coram: ZONDI DP and MAKGOKA, KATHREE -SETILOANE JJA and GORVEN
and M OLOPA -SETHOSA AJJA
Heard : 7 November 2024
Delivered: 16 May 2025.
Summary: Criminal law – whether the appellant was arrested and abducted in
Tanzania by members of South African Police Service – matter decided on
respondents’ version – appeal dismissed.
Pleadings – matter to be decided on notice of motion and founding affidavit –
impermissible to make out case in reply – case on pleadings not made out.

2
ORDER
On appeal from: Free State Division of the High Court, Bloemfontein (Loubser J,
sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel where so
employed.
JUDGMENT
Zondi DP (Kathree -Setiloane J A and Gorven and Molopa -Sethosa AJJA
concurring):
Introduction
[1] This appeal concerns the circumstances of the appellant’s arrest in Tanzania
and her transportation from that country to South Africa. The question is: where did
the members of the South African Police Service (SAPS) arrest the appellant ? Was it
at Lanseria Airport, in South Africa or in Tanzania? If the members of SAPS arrested
the appellant whilst she was in Tan zania, that arrest would be unlawful and the
appellant would be entitled to be released from custody since the Republic of South
Africa (South Africa) may not exercise its policing powers in a sovereign state.

Background facts
[2] The appellant was, at some stage at least, the girlfriend of the convicted and
sentenced rapist and murderer, Mr Thabo Bester (Mr Bester), who was serving his
sentence at the Mangaung Correction al Centre in Bloemfontein before his escape
from that facility in about May 2022. Several suspects linked to the escape were
arrested and are facing charges in the Bloemfontein Magistrates ’ Court (the
magistrates ’ court), including defeating the administration of justice, violating a body,
aiding an escape from p rison , corruption, and arson. The appellant was one of these
suspects. She surreptitiously left South Africa . Some months later she was located in
Tanzania and brought back to South Africa. Before her arrest in Tanzania, the
appellant was a fugitive from justice and a warrant for her arrest had been issued . She
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subsequently appeared before the Bloemfontein Magistrate who authorised the
warrant for her detention at the Bizzah Makhathe Correctional Centre in Kroonstad.

[3] On 19 May 2023 , the appellant brought an urgent application in the Free State
Division of the High Court (the high court ) in which she cited the Director of Public
Prosecutions, Free State (the DPP) , the Minister of Police , Captain Tieho Jobo
Flyman, the Presiding Magistrate (the magistrate) , the Head of Bizzah Makhate
Correctional Centre: Kroonstad (the Head of the Kroonstad Correctional Centre) as
first, second, third, fourth and fifth respondents respectively. In that application the
appellant sought an order:
(a) declaring that her apprehension, arrest and abduction in Tanzania was
performed by members of the S APS on or about 7 April 2023 and her subsequent
transportation to South Africa and purported arrest and detention pursuant thereto,
were wrongful and unlawful;
(b) declaring that her arraignment before the magistrate under case number
20A/113/23 was a nullity and setting aside th ose proceedings in so far as they related
to her;
(c) declaring that the orders and warrants issued by the fourth respondent
authorising the Head of Kroonstad Correctional Centre to detain the appellant , are null
and void; and
(d) declaring that the appellant was entitled to be released from detention and
directing the Head of Kroonstad Correctional Centre to immediately do so .

High court findings
[4] The high court found that the appellant’s deportation constituted a disguised
extradition which is inconsistent with the Constitution and International Law. This
notwithstanding, relying on S v Mahala and Another (Mahala )1 and S v December
(December ),2 it found that the appellant’s removal from Tanzania was not unlawful
since she had willingly acquiesced to her transportation back to South Africa.
According to the high court the appellant had given informed and enforceable consent
as required in Mohamed and Others v President of the R epublic of South Africa

1 S v Mahala and Another 1994 (1) SACR 510 (A) ; [1994] 4 All SA 198 (A) .
2 S v December 1995 (1) SACR 438 (A).
4
(Society for the Abolition of the Death Penalty in S outh Africa and Another Intervening)
(Mohamed ).3 It found that the appellant was aware, at the time of being handed over,
of the charges that could be levelled against her upon her arrival in South Africa, yet
she, nevertheless, consented to her removal from Tanzania, and return to South
Africa, because she wanted to be with her children. The high court dismissed her
application with costs including those of two counsel where so employed. The appeal
lies against these orders with leave of this Court.

The parties’ submissions
[5] There is a material factual dispute between the parties as to the arrest of the
appellant in Tanzania and the circumstances under which she was returned to South
Africa. The appellant alleges that on 6 April 2023 she was arrested in Tanzania and
forcibly abducted by members of the SAPS. On the evening of 12 April 2023, she was
blindfolded and taken to an airport by the said members . From there two uniformed
SAPS members took her in a kombi to an aircraft and ordered her to board . She sat
in the aircraft flanked by members of the South African Defence Force and SAPS . The
aircraft flew the appellant to Lanseria airport in Johannesburg and from there she was
taken to the Bloemfontein magistrat es’ court , for the first appearance.

[6] The appellant states in her founding papers that she was not found to be an
illegal immigrant by any court in Tanzania , and nor was she deported by any such
court to South Africa. She contends that her arrest and deportation from Tanzania to
South Africa amounted to an illegal abduction and that her extradition from Tanzania
was not in accordance with the Extradition Act 67 of 1962 (the Extradition Act) or the
Southern African Development Community Protocol on Extradition concluded in 2002
(SADC Extradition Protocol) . Both South Africa and Tanzania are parties to this
Protocol.

[7] The appellant maintains that she should have been surrendered to South Africa
in terms of the Tanzanian Law of Extradition Act 15 of 1965. And since no extradition

3 Mohamed and Others v President of the Republic of South Africa (Society for the Abolition of the Death
Penalty in South Africa and Another Intervening) [2001] ZACC 18; 2001 (3) SA 893 (CC); 2001 (2)
SACR 66; 2001 (7) BCLR 685.

5
hearing took place in any Tanzanian court her extradition was not authorised by the
Minister of International Affairs of Tanzania.

[8] The respondents deny that the appellant was arrested in Tanzania by members
of the SAPS , and that she was abducted from that country. According to the
respondents , the appellant’s arrest in Tanzania and her return to South Africa occurred
as follows. On 8 April 2023 , members of the SAPS received information that Mr Bester
and the appellant had been apprehended in the city of Arusha in Tanzania by the
Tanzanian authorities. At the time, a warrant for the arrest of the appellant had already
been issued in South Africa, and she and Mr Bester were therefore wanted fugitives.
A multi -department al delegation was assembled in Pretoria to travel to Tanzania to
deal with the matter. This delegation consisted of high -ranking police officers, a
member of Interpol, a member of the South African Department of Home Affairs ( the
Department of Home Affairs), a member of Correctional Services and a Deputy
Director of Public Prosecutions (the South African delegation).

[9] This delegation then flew to Tanzania on 9 April 2023 and arrived at Arusha late
that night. The following day they met with the Tanzanian authorities who informed
them that Mr Bester and the appellant were not legally present in Tanzania as they
had entered , and remained there , without legal documentation . The Tanzania n
authorities further informed them that , once the identity of Mr Bester and the appellant
had been confirmed, the Government of Tanzania would advise on the further handling
of the matter. The South African delegation informed the Tanzanian authorities that
the South African Government had not initiated any extradition process es as it was
waiting to be apprised of the decision of the Tanzanian Government in the matter. If
the decision was that the extradition route should be followed, then the South African
Government would initiate such a proces s.

[10] Some members of the South African delegation then visited Mr Bester and the
appellant at the facility where they were detained under the control of the Tanzanian
Tourist and Diplomatic Police Division. After their identity and nationality were
confirmed, the appellant and Mr Bester were offered consular and legal services by
the South African Department of International Relations and Cooperation. They
declined the offer. On 12 April 2023 , the Tanzanian officials informed the South African
6
delegation that their government had declared the appellant and Mr Bester prohibited
immigrants in terms of the Tanzanian immigration laws and that it had decided to
deport them. The South African delegation was also informed that, since South Africa
was the country of origin of the appellant and Mr Bester, they would be handed over
by the Tanzanian authorities to the South African High Commission (the High
Commission) in Tanzania to facilitate their removal from that country .

[11] Seeing that the Tanzanian Ministry of Home Affairs would not cover the
appellant and Mr Bester’s deportation costs , the High Commission engaged the
officials of the Department of Home Affairs to facilitate the removal of Mr Bester and
the appellant from Tanzania. Those officials flew to Tanzania in a chartered aircraft to
receive the appellant and Mr Bester from the High Commission officials. Members of
the SAPS accompanied the officials of the Department of Home Affairs on the flight to
provide security to the m, since Mr Bester was considered extremely dangerous. The
respondents maintain that members of the SAPS did not travel to Tanzania to arrest
the appellant.

[12] The Department of Home Affairs aircraft landed in Tanzania late in the evening
of 12 April 2023. At the airport, the appellant and Mr Bester were handed over to the
High Commission by the Tanzanian Ministry of Home Affairs. Shortly thereafter, the
High Commission handed them ov er to an immigration official of the Department of
Home Affairs, and they were flown back to South Africa in its aircraft. The aircraft
departed the airport in Tanzania shortly after midnight the same evening. The next
day, 13 April 2023, the aircraft land ed at Lanseria airport in Johannesburg and the
appellant was arrested by members of the SAPS upon her arrival .

[13] The respondents point out in their answering affidavits that, at the time the
appellant was handed over to the Department of Home Affairs immigration official by
the High Commission official in Tanzania, she did not offer any resistance or protest.
Not only that, but the appellant informed all and sundry that she wanted to return to
South Africa to her children. The responde nts deny that the appellant was at any stage
blindfolded or that members of the SAPS played any role in the hand over .

7
[14] In the replying affidavit , the appellant adds that whilst she was in custody in
Tanzania, she instructed Advocate Gwakisa Sambo, to provide legal assistance to
her. She also introduces an additional layer to her cause of action. She avers for the
first time , that her return from Tanzania and transportation to South Africa was an
extradition disguised as a deportation , which she avers is not a lawful mechanism for
the return of a wanted fugitive such as herself. The appellant contends that the South
African delegation colluded with the Tanzanian authorities to secure her forc ible return
to South Africa to evade the extradition procedures provided for in the SADC
Extradi tion Protocol.

[15] That this was the case, the appellant argues, is borne out by the fact that when
the Tanzanian authorities asked the South African delegation if they had prepared the
necessary extradition documents, it informed the Tanzanian authorities that it had not,
because ‘South Africa’s action would need to be informed by the decision taken by the
Government of Tanzania on the matter.’ To extradite her, proceeded the argument,
the South African Government did not have to get the permission of, or direction from,
the Tanzanian Government. She contends that she was forc ibly placed on the
Department of Home Affairs aircraft without being afforded a choice as to how she
should leave or where she should go. She denies that she did not object when the
High Commi ssion official handed her over to the Department of Home Affairs official ,
and that she had indicated at the time that she wanted to return to South Africa to her
children.

Issues
[16] The appeal raises the following issue s:
(i) Was the appellant arrested in Tanzania by members of the SAPS or the
Tanzanian authorities?
(ii) Did the appellant make out a case on the papers that her handing over by the
Tanzanian Ministry of Home Affairs to the South African High Commission and her
transportation by the respondents to South Africa was part and parcel of a disguised
extradition in breach of the law?

8
(i) Was the appellant arrested in Tanzania by members of the SAP S or the
Tanzanian authorities?
[17] The debate on this aspect at the hearing of the appeal was whether the
appellant had made out a case for the relief she sought. Counsel for the appellant,
relying on Zealand v Minister for Justice and Constitutional Development ,4 submitted
that it was sufficient for the appellant simply to plead that she was unlawfully arrested
and brought to South Africa , and once that was established the respondents b ore the
burden to justify the deprivation of her liberty.5 In Zealand the Constitutional Court
explained the rationale for this approach as follows:6
‘This is not something new in our law. It has long been firmly established in our common law
that every interference with physical liberty is prima facie unlawful. Thus, once the claimant
establishes that an interference has occurred, the burden falls upon the person causing that
interference to establish a ground of justification. In Minister van Wet en Orde v Matshoba , the
Supreme Court of Appeal again affirmed that principle, and then went on to consider exactly
what must be averred by an applicant complaining of unlawful detention. In the a bsence of
any significant South African authority, Grosskopf JA found the law concerning the rei
vindicatio a useful analogy. The simple averment of the plaintiff’s ownership and the fact that
his or her property is held by the defendant was sufficient in such cases. This led that court to
conclude that, since the common -law right to personal freedom was far more fundamental
than ownership, it must be sufficient for a plaintiff who is in detention simply to plead that he
or she is being held by the defendan t. The onus of justifying the detention then rests on the
defendant. There can be no doubt that this reasoning applies with equal, if not greater, force
under the Constitution. ’ (Footnotes omitted)

[18] This approach was recently affirmed by the Constitutional Court in Mahlangu
and Another v Minister of Police ,7 (Mahlangu) in which it stated:
‘It follows that in a claim based on the interference with the constitutional right not to be
deprived of one’s physical liberty, all that the plaintiff has to establish is that an interference

4 Zealand v Minister for Justice and Constitutional Development and Another 2008 (2) SACR 1 (CC) ;
[2008] ZACC 3; 2008 (6) BCLR 601 (CC); 2008 (2) SACR 1 (CC); 2008 (4) SA 458 (CC) (Zealand ).
5 Zealand para 24, as referred to recently by this Court in Syce and Another v Minister of Police [2024]
ZASCA 30 ; 2024 (2) SACR 1 (SCA) para 49.
6 Zealand para 25. See also reference to the dictum quoted in para 25 in De Klerk v Minister of Police
[2019] ZACC 32; 2019 (12) BCLR 1425 (CC); 2020 (1) SACR 1 (CC); 2021 (4) SA 585 (CC) paras 14
and 122.
7 Mahlangu and Another v Minister of Police [2021] ZACC 10; 2021 (7) BCLR 698 (CC); 2021 (2) SACR
595 (CC) ( Mahlangu) , quoting and confirming in para 29 Relyant Trading (Pty) Ltd v Shongwe [2007] 1
All SA 375 (SCA) ; 2006 JDR 0720 (SCA) para 6.
9
has occurred. Once this has been established, the deprivation is prima facie unlawful , and the
defendant bears an onus to prove that there was a justification for the interference.’8

[19] It is clear from Zealand and Mahlangu that the onus shifts only once the identity
of the party alleged to have acted unlawfully has been established. The appellant ’s
case against the respondents was still -born as she failed to establish that she was
arrested in Tanzania by members of the SAPS. The case before this Court that the
Minister of Police was called upon to answer was that members of the SAPS arrested
and abducted the appellant in Tanzania.

[20] The appellant’s case against the respondents was answered in detail by the
Minister of Police and the Minister of Home Affairs in the answering affidavit s deposed
to Mr Shibiri and Mr Matthews, respectively . The respondents’ version was that the
appellant was arrested together with Mr Bester in Tanzania by the Tanzanian
authorities for being ‘[unlawfully] present within the Republic of Tanzania.’ On 12 April
2023 , the Tanzanian authorities reported to the South African delegation that their
government had taken a decision to deport Mr Bester and the appellant since it had
declared them prohibited immigrants. The Tanzanian authorities then handed the
appellant over to the High Commission official who, in turn, handed her over to the
South African Immigration official at Kilimanjaro airport in Tanzania. The appellant
offered no resistance or protest. In fact, the appellant expressed the desire to return
to South Africa to her children.

[21] Since the appellant was seeking final relief in the matter, in terms of the
principles laid down in Plascon -Evans v Van Riebeeck Paints Pty (Ltd) ,9 this had to be
decided on the Minister of Police ’s version since his evidence shows clearly that SAPS
did not take any action against the appellant until her arrest at Lanseria airport . The
version put forward on behalf of the Minister of Police and the other respondents could
not be said to be far -fetched or clearly untenable in that it an d can be rejected merely
on papers. The version of the Minister of Police is that members of the SAPS were not

8 Mahlangu para 32.
9 Plascon -Evans v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 at 634E -635C ; [1984] 2 All SA 366
(A) at 367 -368.
10
involved in her arrest in Tanzania or her removal from that country . There is no reason
to reject this version. If the SAPS arrested her in Tanzania as claimed by the appellant,
why would it be necessary for the SAPS to arrest her again when she landed at
Lanseria airport on 13 April 2023? In fact, the evidence is that the appellant was
arrested at Lanseria airport not by the members of the SAPS who formed part of the
South African delegation to Tanzania, but by the SAPS members investigating the
case , concerning Mr Bester’s escape , from the Mangaung Correctional Centre. The
investigating team was waiting at Lanseria airport for the arrival of the Department of
Home Affairs aircraft from Tanzania and had not travelled to Tanzania . There was no
attack on the lawfulness of the arrest of the app ellant at Lanseria airport. She
disavowed that the arrest had taken place there and founded her application
foursquare on her arrest by members of the SAPS in Tanzania.

[22] There was nothing sinister about the presence of members of the SAPS on the
aircraft that went to Tanzania. According to the Department of Home Affairs, the
services of the SAPS were enlisted because Mr Bester was regarded as extremely
dangerous. The Department of Home Affairs therefore g ave a reasonable explanation
for the SAPS presence on the aircraft that was d espatched to Tanzania. Thus, the
onus never shifted to the Minister of Police since the evidence shows clearly that
members of the SAPS were never involved in any actions against the appellant before
her arrest at Lanseri a airport .

[23] As far as the appellant’s case against the Department of Home Affairs is
concerned, in my view the appellant failed to make out a case against it at all in the
founding papers . The relief sought by the appellant in her urgent application has been
set out above. It is necessary to sketch the sequence of events which led to the hearing
of the matter in the high court on an urgent basis. The founding papers were issued
on 19 May 2023. The appellant cited as respondents the first to fifth respondents
herein. The entire thrust of her case was that members of the SAPS effected her arrest
in Tanzania as well as her transport from that country to the Lanseria airport in South
Africa. As a result, the relief sought was aimed foursquare at the Minister of Police and
the other four cited respondents and no -one else. It is clear that if members of the
SAPS had arrested her in Tanzania, such arrest and any subsequent actions on the ir
11
part would have been unlawful since the SAPS had , and has , no jurisdiction to arrest
or act against persons outside South Africa.

[24] No mention was made of employees of the Department of Home Affairs or of
the Minister of that department. They were not cited as respondents. On the contrary,
on 15 May 2023 , attorneys representing the appellant wrote to the Director General of
that department requiring certain information and documents concerning the
involvement, if any, of members of the department in the actions in Tanzania by 16:00
that day. The Director General responded on the same day to the effect that a request
should be made under the Promotion of Access to Information Act 2 of 2000. The
appellant’s attorneys wrote by letter dated 22 May 2023 responding to a letter from the
Director General of the previous day (which letter was not included in the record). It
refers to myriad issues raised by the Director General and states, among other things,
that instructions would be taken on making a join der application. The Director General
responded the following day noting that the Minister of Home Affairs had not been
joined as a respo ndent in the matter then set down for 26 May 2023 . An undertaking
was required that the Minister be joined and a reasonable opportunity be given to file
affidavits. This letter was responded to the following day and contained the following
material statements:
(a) ‘The application . . . does not seek any relief against the Department of Home
Affairs.’
(b) ‘. . . we see no need for you to be joined as a Respondent . . .’
(c) ‘. . . our client’s version is that she was unlawfully arrested by members of the
South African Police in Tanzania and transported back to South Africa. It is our client’s
version that no documentation ever existed or was shown to her nor was she taken to
the SA Consulate.’
(d) ‘You are welcome, and invited should you elect to do so, to join the proceedings
as a respondent. We will not join you for the reasons stated.’

[25] It can thus be seen that the clear intention of the appellant was to proceed only
against the respondents already cited in the matter. A refusal to join the Minister of
Home Affairs is entirely inconsistent with seeking any relief against him. It is
noteworthy that paragraph (a) above remained the position until the appellant’s heads
of argument, without more, submitted that amended relief would be sought which
12
included the Minister of Home Affairs in the declaration sought in paragraph (a)
referred to in paragraph 3 of this judgment.

[26] The Minister of Home Affairs then launched an application to join the application
as the sixth respondent and set it down for 26 May 2023 , the date on which the urgent
application was to be heard. On that day, an order was granted by consent joining him
and directing the filing of further affidavits and heads of argument in the matter and
adjourning it for hearing on the opposed roll on 1 June 2023 . The sixth respondent
delivered an answering affidavit on 29 May 2023 and the appellant delivered a
compo site reply to the two answering affidavits on 30 May 2023 .

[27] No application was ever brought to amend the relief sought to include relief
against the sixth respondent. The matter was argued based on the original relief
sought against the first five respondents only. That position obtained even during the
hearing of the appeal before us. For the first time, in the heads of argument of the
appellant, it was submitted that, on appeal, this Court should grant the following order:
‘2.1 It is declared that the applicant’s apprehension and arrest in Tanzania by officials
of the second and sixth respondents, as well as her subsequent forced return to the
South Africa is inconsistent with the Constitution of South Africa, 1996, unlawful and
invalid.’ In addition, the heads of argument indicated that a costs order would be
sought against, inter alia, the sixth respondent. Even during the appeal, no substantive
application was brought to amend the notice of motion to include any order against
the sixth respondent. The submission in the heads clearly indicated that the initial
paragraph of the notice of motion would no longer be sought and that amended relief
would be sought.

[28] This occasioned some robust debate between the bench and counsel for the
appellant. The latter was unable to point to any authority that, without any application
to that effect, relief could be sought on appeal against a party against whom no relief
had previously been sought. Nor have I found any such authority. Counsel relied on
matters where amended relief was granted against a party from whom relief had
previously been sought, especially where a constitutional breach had been
established. In partic ular, the appellant called in aid paragraph 18 of the matter of
Modderfontein Squatters, Greater Benoni C ity Council v Modderklip Boerdery (Pty)
13
Ltd (Agri SA & Legal Resources Centre, Amici Curiae); President of the R epublic of
South Africa v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources Centre,
Amici Curiae) (Modderfontein ):
‘In the light of the aforegoing, it is not surprising that, at the hearing before De Villiers J,
Modderklip and Agri SA accepted that the unconditional removal of the occupiers was not a
viable option. Instead, they proposed an order in two parts: the firs t was a declaratory order
relating to the State's constitutional obligations towards not only Modderklip but also the
occupiers, and the second part was a mandamus requiring the State to submit to Court a
comprehensive plan to solve the problems of Modderk lip and the occupiers. In the Court
below, the State objected to the new direction, wishing to hold Modderklip to the relief originally
sought. This objection was overruled by De Villiers J (at para [52]), correctly so. If a
constitutional breach is establ ished, this Court is (as was the Court below) mandated to grant
appropriate relief. A claimant in such circumstances should not necessarily be bound to the
formulation of the relief originally sought or the manner in which it was presented or argued.
That much is apparent from the course the litigation took in Carmichele and Bannatyne and
why the further amici, the Nkuzi Development Association, the Community Law Centre and
the Programme for Land and Agrarian Studies (University of the Western Cape), were
admitted to the proceedings.’10

[29] I respectfully agree with, and am clearly bound by, this dictum . Where relief has
been sought against cited parties and it has been established that they committed a
constitutional breach, it is entirely appropriate and indeed obligatory that the original
relief sought be amended to address the breach. That would fall under the customary
prayer that further or amended relief would be sought. There is ample authority that
this is competent and, indeed, necessary. A court should do so mero motu if the party
concerned does not itself request amended relief. As mentioned i n Modderfontein , this
was spelled out in Fose v Minister of Safety and Security :11
‘Courts should not be overawed by practical problems. They should “attempt to synchronise
the real world with the ideal construct of a constitutional world” and they have a duty to mould
an order that will provide effective relief to those affected by a constitutional breach. Fose v
Minister of Safety and Security held that -

10 Modderfontein Squatters, Greater Benoni CC v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources
Centre, Amici Curiae); President of the RSA v Modderklip Boerdery (Pty) Ltd (Agri SA & Legal Resources Centre,
Amici Curiae) [2004] ZASCA 47; 2004 (6) SA 40 (SCA); 2004 (8) BCLR 821; [2004] 3 All SA 169 para 18
(Modderfontein) . References omitted. Approved in Commando and Others v City of Cape Town and Another [2024]
ZACC 27; 2025 (3) SA 1 (CC); 2025 (3) BCLR 243 (CC) para 32.
11 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC).
14
“(a)ppropriate relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be required to
ensure that the rights enshrined in the Constitution are protected and enforced. If it is
necessary to do so, the courts may even have to fashion new remedies to secure the
protection and enforcement of these all -important rights.”
(In para [19].)
“I have no doubt that this Court has a particular duty to ensure that, within the bounds of the
Constitution, effective relief be granted for the infringement of any of the rights entrenched in
it. In our context an appropriate remedy must mean an effectiv e remedy, for without effective
remedies for breach, the values underlying and the right entrenched in the Constitution cannot
properly be upheld or enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched right has occurred, it be
effectively vindicated. The courts have a particular responsibility in this regard and are
obliged to ‘forge new tools’ and shape innovative remedies, if needs be, to achieve this goal.”
(In para [69].)’12

[30] The difficulty in the present matter is not that a party against whom some relief
had been sought was proved to have committed a constitutional breach and was, as
a result, confronted with amended relief at a late stage in proceedings, even on appeal.
In the present matter, the appellant, despite the Minister of Home Affairs having joined
as a respondent, at no point indicated that her previous express view that relief would
only be sought against the first five respondents, had changed . Nor did she at any
stage seek to amend that relief to include relief against the Minister of Home Affairs.

[31] The appellant sought to justify the new relief sought on the basis that a
constitutional breach had been established in the deprivation of her liberty. In support,
she relied on the matter of Zealand where it was held:
‘[24] There is another, more important reason why this court should rule in the applicant's
favour. The Constitution enshrines the right to freedom and security of the person, including
the right not to be deprived of freedom arbitrarily or without just ca use, as well as the founding
value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead

12 Modderfontein para 42. References omitted. Referred to with approval in Thint (Pty) Ltd v NDPP; Zuma v NDPP
[2008] ZACC 13; 2009 (1) SA 1 (CC); 2008 (2) SACR 421; 2008 (12) BCLR 1197 fn 174.
15
that he was unlawfully detained. This he did. The respondents then bore the burden to justify
the deprivation of liberty, whatever form it may have taken.
[25] This is not something new in our law. It has long been firmly established in our common
law that every interference with physical liberty is prima facie unlawful. Thus, once the claimant
establishes that an interference has occurred, the burden falls upon the person causing that
interference to establish a ground of justification. In Minister van Wet en Orde v Matshoba , the
Supreme Court of Appeal again affirmed that principle, and then went on to consider exactly
what must be averred by an applicant c omplaining of unlawful detention. In the absence of
any significant South African authority, Grosskopf JA found the law concerning the rei
vindicatio a useful analogy. The simple averment of the plaintiff's ownership and the fact that
his or her property is held by the defendant was sufficient in such cases. This led that court to
conclude that, since the common -law right to personal freedom was far mo re fundamental
than ownership, it must be sufficient for a plaintiff who is in detention simply to plead th at he
or she is being held by the defendant. The onus of justifying the detention then rests on the
defendant. There can be no doubt that this reasoning applies with equal, if not greater, force
under the Constitution.
[26] Even if the applicant can be said to have altered his cause of action (which I do not accept
to be the case), no prejudice will be suffered by the respondents if this court decides the case
as it has now been presented.’13

[32] Once again, those principles are well -established. What is of cardinal
importance, however, is that, for the onus to shift to a party, it must be established that
that party is the one responsible for the constitutional breach. In this regard, the dicta
in question make s it clear that ‘once the claimant establishes that an interference has
occurred, the burden falls upon the person causing that interference to establish a
ground of justification’14 and, as regards the rei vindicatio , ‘[t]he simple averment of
the plaintiff's ownership and the fact that his or her property is held by the defendant
was sufficient’15 and that this Court accordingly correctly concluded that ‘it must be
sufficient for a plaintiff who is in detention simply to plead that he or she is being held
by the defendant .’16 (Emphasis added.) In the present matter, therefore, before any
onus shifted to the Minister of Home Affairs, it was necessary to prove that he was ‘the

13 Zealand paras 24 -26. References omitted.
14 Ibid para 25.
15 Ibid para 25.
16 Ibid para 25.
16
person causing that interference’ or that the appellant was ‘being held by the [Minister
of Home Affairs ].’ No such averments appear in the founding affidavit or are in cluded
as the relief sought in the Notice of Motion. There was simply no case which the
Minister of Home Affairs was obliged to meet. As such, no onus shifted to the Minister
of Home Affairs for him to discharge. The only averments, by way of argument, appear
in the replying affidavit which, if relief was to be based on it, should have been f ramed
as a supplementary founding affidavit so that the Minister of Home Affairs had the
opportunity to respond. In Zealand , it was made clear that, even if amended relief was
considered against the party alleged to have breached the constitutional right,
prejudice should be considered before such relief could be granted.

[33] In the present matter, had such an amendment have been sought, or had the
replying affidavit been styled a supplementary founding affidavit, the Minister of Home
Affairs may well have sought to depose to a further affidavit. Since neither of these
was done , if any relief is granted against the Minister of Home Affairs, as requested in
the appellant’s heads of argument, the Minister of Home Affairs will be prejudiced by
not being afforded audi alteram partem .

[34] It is no answer to this that the Minister of Home Affairs could have sought to
respond to the replying affidavit by applying to deliver a further affidavit. This was
neither offered by the appellant in reply, nor, as mentioned, did the appellant apply to
amend the relief sought which would also have given the Mi nister of Home Affairs an
opportunity to respond and outline any prejudice occasioned to him if amended relief
was to be considered .

[35] The recent matter of DB v CB17 is instructive. It is necessary to quote
extensively from the majority judgment:
‘[44] The purpose of pleadings is to define the issues for the other party and for the court. The
court is called upon to adjudicate the disputes that arise from the pleadings and those disputes
alone. There are instances where the court may mero motu raise a question of law that
emerges fully from the evidence and which is necessary for the determination of the matter,
provided its consideration on appeal involves no unfairness to the other party against whom it

17 DB v CB [2024] ZACC 9; 2024 (5) SA 335 (CC); 2024 (8) BCLR 1080 (CC).
17
is directed. It is, however, impermissible for a court to decide issues falling outside the
pleadings, without determining issues of fairness and prejudice. It is impermissible for a party
to plead a particular case and seek to establish a different case a t the trial.
[45] This principle is equally applicable, and perhaps more so, to appeals. A party should
generally not be allowed to argue new issues on appeal that were not raised or considered by
the lower court. There are exceptions and circumstances when a party may be allowed to rely
on an issue which was not covered in the pleadings. In Slabbert the Supreme Court of Appeal
articulated these circumstances:
“This occurs where the issue in question has been canvassed fully by both sides at the trial.
In South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd , this court said: However,
the absence of such an averment in the pleadings would not necessarily be fatal if the point
was fully canvassed in evidence. This means fully canvassed by both sides in the sense that
the court was expected to pronounce upon it as an issue.”
[46] This Court in Notyawa expressed its disapproval of a litigant changing its case as the
matter proceeded through the various courts. It said:
“Before us this finding was not challenged, but the applicant changed tack. The consequential
relief was no longer sought, but he submitted that a live controversy between the parties
remained. This related to what further consequential remedy, in the form of a claim for
damages, might be available to the applicant. This would be pursued in different proceedings.
This change in strategy cannot avail the applicant, not least because the point is being raised
for the first time in this Court. There was nothing to prevent the applicant from seeking an
amendment to the relief he sought in the High Court . Yet there is no explanation why he did
not do so, nor why this Court should do so as a court of first instance. That this should not
readily be countenanced was recently re -affirmed by this Court in Tiekiedraai . There is no
reason to do so here.”
[Emphasis added.]
[47] The question of unfairness and prejudice must be considered where a party raises an
issue for the first time on appeal. What might be “unfair” was considered by this court
in Barkhuizen , albeit in a slightly different context, where the court noted that:
“Unfairness may arise where, for example, a party would not have agreed on material facts,
or on only those facts stated in the agreed statement of facts had the party been aware that
there were other legal issues involved. It would similarly be unfair to the other party if the law
point and all its ramifications were not canvassed and investigated at trial.”
[48] It also noted that:
18
“The mere fact that a point of law is raised for the first time on appeal is not in itself sufficient
reason for refusing to consider it. If the point is covered by the pleadings, and if its
consideration on appeal involves no unfairness to the other party against whom it is directed,
this Court may in the exercise of its discretion consider the point.”
[49] An appeal court can deal with an issue that was not raised in the lower courts and not
considered by the lower courts. However, this can only be done in exceptional circumstances.
A court will not entertain a new issue on appeal where it causes prejud ice or unfairness to the
other party.’18

[36] In the present matter, the following is clear. The pleadings define the issues
and, in the case of application papers, the Notice of Motion and founding affidavit must
contain the case to be met by the respondents. No mention was made of the Minister
of Ho me Affairs in those documents. As was the case in Notyawa , referred to in DB v
CB, ‘[t]here was nothing to prevent the applicant from seeking an amendment to the
relief [she] sought in the High Court. Yet there is no explanation why [she] did not do
so, nor why this Court should do so as a court of first instance.’ Amended relief on
appeal should ‘not readily be countenanced’. Unfairness must be considered if such
relief is sought. If ‘its consideration on appeal involves no unfairness to the other party
against whom it is directed, this Court may in the exercise of its discretion consi der
the point.’ The latter dictum must mean that, if there is unfairness, no discretion arises
to consider the point . If there is no unfairness, a court must still exercise a discretion
whether to allow amended relief or not.

[37] In DB v CB , the majority in the Constitutional Court held that the issue in
question could not be dealt with on appeal to it. This was dealt with as follows:
‘In any event, and if it can be said that the ousting issue arose on the pleadings, the expansion
of the issues was impermissible for a number of reasons. First, the issues had not been
properly covered by the pleadings. Secondly, and crucially, the questi on of unfairness or
prejudice was not considered by the High Court or the Supreme Court of Appeal. Thirdly, as
mentioned, the matter was presented as a stated case in the Regional Court. The respondent
did not have an opportunity to present evidence as to the facts and circumstances surrounding
the conclusion of the prenuptial agreement. Such evidence may have been relevant to the
question whether the agreement was a donation that fell outside the ambit of s 7 of the Divorce

18 Ibid paras 44 -49.
19
Act. Although neither party raised the question of prejudice, a court is enjoined to consider this
question in determining whether an issue can be raised for the first time on appeal. Fourthly,
no reason has been advanced by the applicant as to why he coul d not amend his pleadings.
Fifthly, both the High Court and the Supreme Court of Appeal failed to exercise their discretion
as to whether they should consider the new issue on appeal. It would thus not be in the
interests of justice to grant leave to appea l on the ousting issue.’19

[38] As has been said, there would be unfairness in the failure to extend audi
alteram partem to the Minister of Home Affairs . This is one of the fundamental tenets
of the Rule of Law. Although it is not possible to specify the prejudice which might
result, some of the considerations set out above apply. At the very least, in the light of
the avowed intent of the appellant to pr oceed only against the first five respondents,
the Minister of Home Affairs would be prejudiced if relief were to be granted agains t
him when this was nowhere foreshadowed prior to receipt of the appellant’s heads of
argument and in the absence of a formal application to amend even on appeal. That
being the case, no discretion arises in the present matter for this Court to allow the
amended relief sought. For these reasons, no relief should be granted against the
Minister of Home Affairs, regardless of the outcome of the rest of the appeal.

(ii) Did the appellant make out the case on the papers that her handing over by
the Tanzanian Ministry of Home Affairs to the South African High Commission
and her transportation by the respondents to South Africa was part and parcel
of a disguised extradition in breach of the law?
[39] The second leg of the appellant’s argument was that her arrest in Tanzania and
handing over by the Tanzanian Ministry of Home Affairs to the South African High
Commission official and her removal from Tanzania, were part and parcel of a
disguised extraditi on. The appellant contends that there was collusion between South
Africa and Tanzania to secure her deportation to South Africa in order to evade the
procedures for extradition. It was submitted on behalf of the appellant that because
her deportation was a disguised extraditi on it was unlawful and a South African court
should therefore have decline d to exercise jurisdiction. But, as mentioned above, the
case made out against the Minister of Police was that members of the SAPS arrested

19 Ibid par 53.
20
the appellant in Tanzania and that they were involved in forcing the appellant to board
the aircraft and return to South Africa. The factual disputes in this regard must be
determined in favour of the Minister of Police. And, as set out above, no relief ag ainst
the Minister of Home Affairs is competent. As such, it is unnecessary to consider the
law concerning disguised extraditions and its application in this matter.

[40] In the light of the conclusion I have reached, it is not necessar y to have regard
to evidence o n the question whether or not the appellant returned to South Africa
voluntarily.
[41] In conclusion , I find that the appellant was not arrested in Tanzania by
members of the SAPS and therefore the appellant failed to show that the police acted
unlawfully . The overwhelming evidence is that the appellant and Mr Bester were
arrested by the Tanzanian authorities for having violated the immigration laws of that
country. When she arrived at Lanseria airport, she was lawfully arrested by members
of the S APS.
Order
[42] In the result I make the following order:
The appeal is dismissed with costs, including th e costs of two counsel where so
employed .

______ ____________
D H ZONDI
DEPUTY PRESIDENT

Makgoka JA (dissenting):

[43] I have read the judgment prepared by the Deputy President (the first judgment),
which has admirably set out the background facts. They are therefore not regurgitated
in this judgment. Regrettably , I disagree with the first judgment’s conclusion to dismiss
the appeal, and the reasoning underpinning it. I would uphold the appeal.

21
[44] The first judgment rests on three findings. First, that the appellant did not make
a case for disguised extradition in the founding affidavit but in her replying affidavit,
and therefore, the argument should not be considered. Second, because the appellant
had failed to establish that she was arrested by the SAPS in Tanzania, this is
dispositive of the matter, and it is not necessary to consider whether the appellant’s
deportation to South Africa was lawful. Third, that because the appellant did not amend
her notice of motion to seek relief against the Minister of Home Affairs, no order should
be made against the Minister.

[45] I do not agree with these conclusions. As to the first, I endeavour to
demonstrate that the appellant did not make a new case in the replying affidavit, but
that the unlawful disguised extradition argument arises fairly from the founding
affidavit. In addition, I make the point that the unlawful disguised extr adition is a point
of law, which can be raised at any stage, even during an appeal, subject to certain
provisos.

[46] As to the second, I am of the view that despite not having been arrested by the
SAPS, consideration should also be given to the lawfulness of: (a) the handing over
of the appellant by the Tanzanian authorities to the South African authorities; (b) the
South African authorit ies’ detention of the appellant upon such hand -over; and (c) the
transportation of the appellant back to South Africa, where she was arrested upon
arrival and subsequently prosecuted. In my view, these questions are inextricably
linked. None of them can be considered in isolation.

[47] As to the third, in constitutional matters where a violation of human rights is
established, a court should not be constrained by procedural missteps in seek ing to
give effective relief to vindicate rights . As I demonstrate in this judgment, the
Department of Home Affairs officials engaged in an unlawful disguised extradition by
deporting the appellant to South Africa without following the extradition process. It is
this conduct that must be declared unlawful and invalid, to the extent of its
inconsistency with the Constitution. Section 172(1)( a) of the Constitution enjoins us to
so. We do not have residual discretion not to. Section 172(1)( b) permits us to make a
consequential order ‘that is just and equitable.’ This, we must do, unbound by any
procedural imperfections. If, as I find, the officials of the Department of Home Affairs
22
acted unlawfully, there can be no conceivable prejudice to the Minister of Home Affairs
were an order of declaration , and related relief, made against him.

The pleadings
[48] As mentioned in the first judgment, the Minister of Home Affairs was initially,
not a party to the application in the high court. In her founding affidavit, the appellant
alleged that the SAPS unlawfully abducted her from Tanzania and deported her to
South Africa. In the answering affidavit on behalf of the first, second and third
respondents (the Justice cluster respondents), this was denied. It was stated that the
Department of Home Affairs was the one instrumental in the deportation of the
appellant, and that the Justice cluster respondents’ role was limited to providing escort
to the Department of Home Affairs officials. Based on these allegations, the Minister
of Home Affairs joined the proceedings as the sixth respondent. The allegations by
the Justice cluster respondents about the role of the Department of Home Affairs
constituted a sufficient basis for the Minister of Home Affairs, as the executive head of
that department, to join the proceedings.

[49] It is understandable why the appellant did not initially join the Minister of Home
Affairs. She had enco untered several officials from South Africa after she had been
arrested in Tanzania. I t is safe to assume that she neither knew which department
each of them represented, nor who played what role in her deportation. This was only
clarified in the answering affidavit on behalf of the Justice cluster respondents . Nothing
turns on the fact that the appellant had declined to join the Minister of Home Affairs.
The fact of the matter is that the Minister subsequently became a party to the
proceedings , and an answering affidavit was deposed on his behalf. As I will
demonstrate later, it is in that affidavit that the unlawful conduct of the Department of
Home Affairs officials in the deportation of the appellant, was laid bare.

New case in the replying affidavit?
[50] In my view, the complete answer to this is that the high court has already
decided it, and there is no cross -appeal to disturb it in this Court. After the appellant’s
delivery of her replying affidavit, the Minister of Home Affairs applied to strike out the
appellant’s assertion of disguised extradition from the replying affidavit (the application
to strike out). The Minister complained that the appellant had sought to make a new
23
case in the replying affidavit. The high court held that the appellant ’s assertions in her
replying affidavit were merely a refinement of what she had averred in her founding
affidavit. It consequently dismissed the application.

[51] There is no cross -appeal against the high court’s order dismissing the
application to strike out. Appeals to this Court are regulated by rule 16(1)( a) and ( b) of
the Superior Courts Act 10 of 201320 (Superior Courts Act) and rule 7(2) and (3) of the
Rules of this Court.21 Referring to their predecessors, ( s 20(1) (b) of the Supreme Court
Act, and Rule 5(3) of the Rules of this Court) this Court in Publications Control Board
v Central News Agency (Publications Board )22 said the following of the provisions:
‘The combined effect of these provisions is that if a respondent in an appeal wishes to achieve
a variation of the judgment or order in the Court a quo he shall lodge a notice of his cross -
appeal setting forth therein full particulars of the variation which he seeks . . .The terms
“judgment” and “order” in the statute and Rule of Court do not embrace every decision or ruling
of a court. These terms are c onfined to decisions granting “definite and distinct relief.” ’

[52] There is no debate that the order of the high court dismissing the application to
strike out is ‘definite and distinct relief’ envisaged in Publications Board . By submitting
that the unlawful disguised extradition should not be considered by this Court, the
respondents attack ed the order of the high court dismissing the application to strike
out, and sought its variation on appeal. This was not open to any of the respondents
without leave to cross -appeal having been granted. It follows that this Court does not
have jurisdiction to consider them afresh.

20 Superior Courts Act 10 of 2013. - Section 16 thereof reads as follows: ‘(1) Subject to section 15(1),
the Constitution and any other law —
(a) an appeal against any decision of a Division as a court of first instance lies, upon leave having been
granted —
(i) if the court consisted of a single judge, either to the Supreme Court of Appeal or to a full
court of that Division, depending on the direction issued in terms of section 17(6); or
(ii) if the court consisted of more than one judge, to the Supreme Court of Appeal;
(b) an appeal against any decision of a Division on appeal to it, lies to the Supreme Court of Appeal
upon special leave having been granted by the Supreme Court of Appeal . . .’
21 The relevant sub -rules read:
‘(2) A respondent in a civil appeal who intends to cross -appeal shall, within one month after receipt
of the appellant’s notice of appeal, lodge a notice of the cross -appeal with the registrar and with the
registrar of the court a quo.
(3) Every notice of appeal and cross -appeal shall —
(a) state what part of the judgment or order is appealed against;
(b) state the particular respect in which the variation of the judgment or order is sought . . .’
22 Publications Control Board v Central News Agency Ltd 1977 (1) SA 717 (A) at 745A.
24

[53] Recently, this Court has had to consider its jurisdiction to entertain appeals in
which leave was not properly granted, or not granted at all. In Hanekom N O v
Nuwekloof Private Game Reserve Farm Owners Association23 special leave to appeal
had been granted by this Court against an order of two Judges who had considered
an appeal against an adjudicator’s decision under the Community Schemes Ombud
Service Act 9 of 2011 . This Court held that the two Judges had sat as a court of first
instance, and therefore, leave to appeal should have been sought from them, instead
of this Court. Accordingly, it held that the special leave to appeal granted by it was
erroneou s and that it had no jurisdiction. The appeal was accordingly struck off the
roll. Minister of Police v Nontsele24 concerned an appeal in which the respondent
sought to challenge an order against which no leave to cross -appeal had been
granted. It was held that a cross -appeal cannot be entertained in the absence of leave
to appeal having been granted.

[54] The upshot of these decisions is that this Court has no jurisdiction to question
the correctness of the high court’s order dismissing the application to strike out, without
leave to cross -appeal having been granted, either by the high court or this Court. By
declining to consider the issue, the first judgment is effectively, but without expressly
saying so, overruling the order of the high court.

[55] The significance of this is two -fold. First, once the high court’s conclusion is
ignored, as the first judgment does, the respondents are relieved of the burden to
explain the lawfulness of taking the appellant into their custody from the Tanzanian
authori ties; and keeping her in detention until her transportation to South Africa.
Second, the dismissal of the application to strike out enabled the high court to
conclude that the respondents engaged in an unlawful disguised extradition. The
approach adopted in the first judgment nullifies that conclusion. That, with respect, this
Court does not have jurisdiction to do without the necessary leave to cross -appeal the
high court’s findings having been granted.

23 Hanekom N O and Others v Nuwekloof Private Game Reserve Farm Owners Association [2024]
ZASCA 154; 2025 (2) SA 128 (SCA).
24 Minister of Police v Nontsele [2024] ZASCA 137; [2025] 1 All SA 44 (SCA).
25
[56] I now consider how the high court disposed of the argument that the appellant
introduced a new case in the replying affidavit. This is how it resolved the issue:
‘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.’25

[57] The high court was correct in its conclusion. On a proper analysis of the
pleadings, the appellant did not raise a new issue in the replying affidavit. Its approach
finds support in a recent decision of the Constitutional Court in Botha v Smuts
(Botha)26 where a similar issue was considered. There, the first respondent had posted
on a social media platform, a picture of the applicant, his child, the location of his
business and residential address, to highlight what he considered to be animal cruelty
taking place on the applicant’s farm. In hi s founding affidavit, the applicant alleged that
the publication posed a threat to the security of his family, and a threat of commercial
harm to his businesses. In his replying affidavit, he asserted that the publication
violated his right to privacy. The respondent objected, alleging that the right to privacy
issue wa s a new cause of action raised only in the replying affidavit.
[58] Writing for the majority, Kollapen J pointed out that in asserting his right to
privacy in the replying affidavit, the applicant had relied substantially on the same facts
advanced in the founding affidavit, ‘[and] formally invoked his right to privacy by
name.’27 He further held that the basis for asserting the right to privacy had been laid
in the notice of motion and founding affidavit, and the replying affidavit ‘directly clarified
his reliance on his right to privacy’.28 Kollapen J further explained:

25 High Court judgment para 22.
26 Botha v Smuts and Another [2024] ZACC 22; 2025 (1) SA 581 (CC); 2024 (12) BCLR 1477 (CC)
(Botha ).
27 Ibid para 53.
28 Ibid para 55.
26
‘[P]rior to the filing of the replying affidavit, the issue of privacy had been raised by [the
applicant] even though not as elegantly or directly as would have been desired, perhaps
because the application was launched as one of urgency. Notwithstanding, [the first
respondent] knew that the case he was required to meet included a privacy challenge and he
responded to that in his answering affidavit. The privacy case was squarely and properly
before the High Court for determination.’29
[59] In a concurring majority judgment, Chaskalson AJ agreed with Kollapen J. He
held that there would be no prejudice to the first respondent in allowing the applicant
to recast his case in this respect. Chaskalson AJ reasoned that there was no
suggestion that had the applicant pertinently pleaded his complaint as a privacy issue,
the respondents would have answered it differently. This was because:
‘Any facts potentially relevant to the re -characterised privacy complaints would have been
equally relevant to the originally pleaded complaints of a threat to security at [the applicant’s]
family home and a threat of commercial harm to his businesses . . .’ .30
[60] Based on the above considerations, the majority considered the right to privacy
issue even though it was not expressly asserted in the founding affidavit, but only in
the replying affidavit.

[61] In the present case, there is similarly no mention of the phrase ‘disguised
extradition’ in the appellant’s founding affidavit. However, the appellant’s complaint
remained consistent that she was unlawfully deported from Tanzania to South Africa.
She said that this was so because: (a) no documentation existed to show that there
was an extradition; and (b) none of the procedures for making an extradition request
had been followed. These averments would fairly sustain an assertion that her
deportation was a disguised extradition. In other words, the facts upon which the
appellant averred that she was unlawfully returned to South Africa, are the same as
would be for the assertion that her deportation was an unlawful disguised extradition.

[62] Put differently, there is no suggestion by any of the respondents that had
disguised extradition been expressly mentioned in the founding affidavit, they would

29 Ibid para 57.
30 Ibid para 215.
27
have framed their answering affidavit differently. All that the appellant did in the
replying affidavit was simply to draw a legal conclusion from the conduct of the
respondents, and pin a label to it as a ‘disguised extradition’.

[63] Furthermore, even if the disguised extradition point constitutes a new case in
the replying affidavit, it is a point of law which can be advanced even if not specifically
mentioned in the papers, provided: (a) it arises from the facts;31 and (b) no prejudice
occurs to the other party.32 As to (a), the appellant has averred that her deportation
from Tanzania to South Africa was unlawful because extradition procedures were not
followed. In its judgment, the high court observed that counsel for the appellant had
‘dealt extensively with the legal principles in question [of extradition and deportations]
. . .’ .33

[64] The high court accordingly devoted some effort to establishing whether the
deportation of the appellant to South Africa was lawful. The issue therefore arises
squarely from the papers, and the high court dealt with it. Similarly, in this Court, both
in their heads of argument and in oral submissions, counsel for the appellant
addressed the issue. We exhaustively debated the merits of the argument with
counsel. As to prejudice, n one of the respondents has asserted any, were the issue to
be considered by this Court. I discern none.

[65] In any event, the respondents could have sought leave to file a supplementary
affidavit to answer what they considered to be a new point raised in the replying
affidavit. In Pretoria Portland Cement Company Ltd v Competition Commission34 this

31 Van Rensburg v Van Rensburg en Andere 1963 (1) SA 505 (A) at 509E -510B; Sentrale Kunsmis
Korporasie (Edms) Bpk v NKP Kunsmisverspreiders (Edms) Bpk 1970 (3) SA 367 (A) at
404D -G; Minister of Justice v Nationwide Truck Hire (Pty) Ltd 1981 (4) SA 826 (A) at 833G in
fin; Cabinet for the Territory of South West Africa v Chikane and Another 1989 (1) SA 349 at 360F -G;
F v Minister of Safety & Security and Others [2011] ZACC 37; 2012 (1) SA 536 (CC); 2012 (3) BCLR
244 (CC); (2012) 33 ILJ 93 (CC); 2013 (2) SACR 20 (CC) para 128; Eskom Holdings SOC Ltd v Vaal
River Development Association (Pty) Ltd and Others [2022] ZACC 44; 2023 (4) SA 325 (CC); 2023 (5)
BCLR 527 (CC) para 277.
32 Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 285G.
33 High Court judgment para 25.
34 Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others [2002] ZASCA
63; 2003 (2) SA 385 (SCA) para 63. See also Sigaba v Minister of Defence and Police and Another
1980 (3) SA 535 (TkS) at 550F; Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T)
paras 51 and 71.
28
Court held that a party under similar circumstances was entitled to do so. This was
affirmed by the Constitutional Court in Botha .35 None of the respondents sought such
leave. The Department of Home Affairs elected to apply for the striking out of the
appellant’s reference to disguised extradition. As mentioned, that application was
dismissed.

[66] It must also be emphasised that the rule against a new case being made in the
replying affidavit,36 is not immutable. Our courts have relaxed the rule where the
interests of justice demand it. In Smith v Kwanonqubela Town Council,37 this
Court explained that the rule against a new matter in reply is not absolute and should
be applied with a fair measure of common sense when it found that the new matter
raised in reply before it provided no material advantage to the applicant.38

[67] In Betlane v Shelly Court CC ,39 the Constitutional Court relaxed the rule to allow
a new legal argument raised in the replying affidavit on the basis that the applicant did
not have legal representation when the founding affidavit was drafted. In My Vote
Counts v Speaker of the National Assembly ,40 the Constitutional Court summarised
the position on the issue thus:
‘It is, in any event, imperative that a litigant should make out its case in its founding affidavit,
and certainly not belatedly in argument. The exception, of course, is that a point that has not
been raised in the affidavits may only be argued or determined by a court if it is legal in nature,
foreshadowed in the pleaded case and does not cause prejudice to the other party.’41
(Footnote omitted.)

[68] Significantly, a new legal point can even be raised on appeal. In Barkhuizen v
Napier ,42 the Constitutional Court said the following about it:
‘The mere fact that a point of law is raised for the first time on appeal is not in itself sufficient
reason for refusing to consider it. If the point is covered by the pleadings, and if its

35 Botha para 56.
36 Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635H.
37 Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA).
38 Ibid para 15.
39 Betlane v Shelly Court CC [2010] ZACC 23; 2011 (1) SA 388 (CC); 2011 (3) BCLR 264 (CC).
40 My Vote Counts NPC v Speaker of the National Assembly and Others [2015] ZACC 31; 2016 (1) SA
132 (CC); 2015 (12) BCLR 1407 (CC).
41 Ibid para 177.
42 Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC); 2007 (7) BCLR 691 (CC).
29
consideration on appeal involves no unfairness to the other party against whom it is directed,
this Court may in the exercise of its discretion consider the point.’43 (Footnote omitted .)

[69] On the footing that the disguised extradition argument arose from the papers
and the high court dealt with it, we are enjoined to deal with it. Declining to do so goes
against the authority of the Constitutional Court. In the context of a constitutional
challenge, that court held in S v Jordan44 that where the constitutionality of a provision
is challenged on a number of grounds and the court upholds one such ground, it should
also express its opinion on the other challenges. This is necessary in the event of the
Constitutional Court declining to confirm the ground upheld by a lower court.45

[70] In Spilhaus Property Holdings (Pty) Limited v MTN (Spilhaus )46 the
Constitutional Court was more express in its criticism of this Court for disposing of a
matter on one aspect, despite there being other contentious ones. Jafta J said:
‘[T]he Supreme Court of Appeal itself has said that it is desirable, where possible, for a lower
court to decide all issues raised in a matter before it. This applies equally to the Supreme
Court of Appeal. This is more so where, as here, the final appeal court reverses its decision
on the chosen limited point. This may impact on the fairness of an appeal hearing. Litigants
are entitled to a decision on all issues raised, especially where they have an option of
appealing further. The court to which an appeal lies also benefits from the reasoning on all
issues.
The practice of choosing one point in disposing of an appeal in the Supreme Court of Appeal
pre-dates the Constitution and arose at the time when that Court was the apex court. It may
have been proper in the pre -constitutional era. That is no longer the case because appeals
against decisions of the Supreme Court of Appeal lie to this Cou rt which is now the apex court
. . .’.47 (Footnotes omitted.)


43 Ibid para 39.
44 S v Jord an (Sex Workers Educati on and Advocacy Task Force and Others as Amici Curiae ) [2002]
ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (CC).
45 Ibid para 21.
46 Spilhaus Property Holdings (Pty) Ltd and Others v Mobile Telephone Networks and Another [2019]
ZACC 16; 2019 (4) SA 406 (CC); 2019 (6) BCLR 772 (CC).
47 Ibid paras 44 and 45.
30
[71] For the reason that we are no longer the court of last instance, the appellant
has the right to apply to the Constitutional Court for leave to appeal. Should such leave
be granted, she would likely persist with her argument that, her deportation was an
unlawful disguised extradition. The Constitutional Court would not have the benefit of
this Court’s view on the issue – the type of situation deprecated in Spilhaus.

[72] Lastly, I consider that the issues raised by the appellant, which implicate public
international law and international human rights law, are ‘ …too important for this case
to be disposed of on [the] narrow basis’ adopted in the first judgment.48

[73] For all of the above reasons, I conclude that the high court was correct to
consider the appellant’s disguised extradition argument. On the basis that there is no
cross -appeal against this conclusion , the only issue before this Court is whether the
high court was correct in its conclusion that the appellant consented or acquiesced in
her deportation to South Africa. Before I come to that issue, I set out my reasoning for
why I agree with the high court’s conclusion that the appellant’s deportation was an
unlawful disguised extradition. I consider in turn, the following under this rubric: (a) the
appellant’s arrest and detention by the Tanzanian authorities; (b) the handing over of
the appellant into the custody of the South African authorities; and (c) the appellant’s
alleged consent to be transported back to South Africa.

The appellant’s arrest and detention by the Tanzanian authorities
[74] The appellant was lawfully arrested and detained by the Tanzanian authorities
because she was in that country illegally. But she was also a fugitive from justice in
South Africa. The legal mechanism through which a fugitive from justice can be
handed over to the State which seeks her or his prosecution, is through extradition.

The extradition regulatory framework
[75] In the present case, the regulatory framework comprises the Tanzanian
Extradition Act49 and the Southern African Development Community Protocol on

48 See the approach of Langa CJ in Chirwa v Transnet Ltd and Others [2007] ZACC 23; 2008 (4) SA
367 (CC); 2008 (3) BCLR 251 (CC); [2008] 2 BLLR 97 (CC); (2008) 29 ILJ 73 (CC) para 86.
49 Tanzanian Extradition Act No. 15 of 1965 (Cap. 368 R.E 2002).
31
Extradition (the SADC Extradition Protocol). Both South Africa and Tanzania are
signatories to the SADC Extradition Protocol . South Africa ratified the SADC
Extradition Protocol on 14 April 2003 and the Protocol entered into force on 1
September 2006.50

[76] Section 5(1) of the Tanzanian Extradition Act provides:
‘A requisition for the surrender of a fugitive criminal of any country who is in or suspected of
being in Tanzania shall be made to the Minister by a diplomatic representative or consular
officer of that country and, upon receipt of requisition, the Minist er may, by order under his
hand, signify to a magistrate that a requisition has been made and require the magistrate to
issue his warrant for the arrest and detention of the fugitive criminal.’

[77] Article 6(1) of the SADC Extradition Protocol provides that an extradition
request shall be made in writing, which together with ‘supporting documents and
subsequent communications shall be transmitted through the diplomatic channel,
directly between the M inistries of Justice or any other authority designated by the State
Parties.’ Article 6(2) prescribes the documents and information which must accompany
the request. Article 10 of the SADC Extradition Protocol provides for urgent provisional
arrest procedures.

Deportation vis -à-vis extradition
[78] In Mohamed the Constitutional Court pointed out that extradition and
deportation serve distinct purposes. The differences were explained as follows:
‘In principle there is a clear distinction between extradition and deportation. Extradition
involves basically three elements: acts of sovereignty on the part of two states; a request by
one state to another state for the delivery to it of an alleged crimin al; and the delivery of the
person requested for the purposes of trial or sentence in the territory of the requesting state.
Deportation is essentially a unilateral act of the deporting state in order to get rid of an
undesired alien. The purpose of deport ation is achieved when such alien leaves the deporting
state’s territory; the destination of the deportee is irrelevant to the purpose of deportation. One
of the important distinguishing features between extradition and deportation is therefore the
purpose of the state delivery act in question. . .’.51 (Footnote omitted).


50 Government Notice 405, Government Gazette 35368 of 25 May 2012.
51 Mohamed para 2 8.
32
[79] What the above exposition entails is that a State that seeks the handing over
of a fugitive from justice from another State, must, ordinarily, do so through extradition.
In the present case, it is common cause that Tanzania handed the appellant to South
Africa, with full knowledge that the appellant was a fugitive from justice in South Africa.
It therefore appreciated that upon handing over the a ppellant to the South African
authorities, she was likely to stand trial in South Africa. It is common cause that the
procedures referred to in both the Tanzanian Extradition Act and the SADC Extradition
Protocol were not followed. On the respondents’ own version, it was by agreement
and cooperation between the authorities of both States that the appellant was handed
over to the South African authorities, and subsequently transported to South Africa.

The handing over of the appellant into the custody of the South African
authorities
[80] It is common cause that, having been arrested by the Tanzanian police, the
appellant was later handed over to the South African authorities, who restrained and
kept her in custody. She was subsequently transported to South Africa, where she
was arrested upon arrival. The South African authorities had to have a lawful basis to
justify their conduct. They explained it as follows. T he Minister of Home Affairs
contended that there was an agreement between Tanzania and South Africa in terms
of which the appellant was handed over and deported to South Africa. For their part,
the Justice cluster respondents submitted that the appellant consented to be
transported back to South Africa.

[81] As to the agreement, Ms Neo Moroeng, the third secretary for the Consular and
Immigration Services at the South African High Commission in Tanzania, explained
how it was reached:
‘The agreement between the Tanzanian authorities and the [South African] High Commission
to deport [the appellant] and [Mr] Thabo Bester back to South Africa was reached at the
premises of the High Commission. I am advised that once that happened, [the app ellant] and
[Mr] Thabo Bester, as a matter of international law, were regarded to have been in [the]
custody of the High Commission on the South African soil.’

33
[82] According to the Department of Home Affairs, once the agreement was
reached, the appellant was taken into custody in terms of s 41(1) of the South African
Immigration Act 13 of 2002 . That provision reads as follows:
‘When so requested by an immigration officer or a police officer, any person shall identify
himself or herself as a citizen, permanent resident or foreigner, when so requested by an
immigration officer or police officer and if on reasonable grounds such immigration officer or
police officer is not satisfied that such person is entitled to be in the Republic, such immigration
officer or a police officer may take such person into custody without a warrant, and if necessary
detain him or her in a prescribed manner and place until such a person’s prima facie status or
citizenship is ascertained. ’

[83] In a nutshell, the Minister of Home Affairs contended as follows. An agreement
was reached at the South African High Commission in Tanzania for the deportation of
the appellant after she had been declared a prohibited immigrant by the Tanzanian
authorities . According to the Minister, this agreement was valid because the South
African High Commission in Tanzania constitutes ‘South African territory’. Based on
that agreement, the Home Affairs officials took the appellant into their custody,
exercising the pow ers contained in s 41 of the South African Immigration Act. They
kept her in custody until she was later transported back to South Africa. The
propositions propounded above, are all wrong.

[84] First, there is no procedure in international law in terms of which a fugitive from
justice can simply be ‘handed over’ to the country in which they are sought for
prosecution based on an agreement between States. That can only be achieved
through an extradition process. In the present case, the appellant could only be
handed over to South Africa after due process had been observed in terms of the
Tanzanian Immigration Act, the Tanzanian Extradition Act and the SADC Extradition
Protocol. The appellant was therefore, handed over by Tanzanian authorities to their
South African counterparts without any legal basis. The agreement between Tanzania
and South Africa is therefore unlawful.

34
[85] Second, in international law, diplomatic premises are not regarded as territories
of their countries. As explained in Santos v Santos ,52 acts occurring there are regarded
as taking place on the territory of the receiving State, and not on that of the sending
State. Third , a plain reading of s 41 makes it clear that it only applies in South Africa,
and not territorially. It is available to an immigration officer or a police officer who
suspects a person in South Africa to be an illegal foreigner. It has nothing to do with a
South African who is arrested in a foreign country for being in that country illegally, as
was the a ppellant.

[86] The significance of the Department of Home Affairs admitting that it took the
appellant into custody and detained her, is that the Minister of Home Affairs was
burdened with the onus to justify the custody and detention. As explained in Zealand ,
in such circumstances, it was sufficient for the appellant to plead that being held in
custody and detention by the South African authorities was unlawful. I have
demonstrated that their attempt to do so by relying on the agreement reached with the
Tanzanian authorities , and on s 41 of the South African Immigration Act, is
misconceived. On their own version, the Justice cluster respondents were complicit in
this. They supported the Department of Home Affairs in keeping the appellant in
custody until she was deported to South Africa.

[87] Section 25(2)( c) of the Tanzanian Immigration Act53 gives guidance on how the
appellant should have been dealt with. It provides that:
‘[A]ny 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, instead of being brought before a magistrate, 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.’

[88] As a prohibited immigrant in Tanzania, in terms of the above provision, the
appellant had to be kept in custody until she boarded a ship or aircraft to leave
Tanzania. Section 25(2)( c) vested the appellant with a right, when leaving Tanzania,
to decide her next destination. She had a choice not to return to South Africa, but to

52 Santos v Santos 1987 (4) SA 150 (W) at 152F -G; Portion 20 of Plot 15 Athol 15 (Pty) Ltd v Rodrigue s
2001 (1) SA 1285 (W) at 1293 C-E.
53 Tanzanian Immigration Act (Cap. 54 R.E 2016 ).
35
go to any other country. However, by being handed over to South African authorities
to transport her to South Africa, the appellant’s right to choose her destination upon
leaving Tanzania, was violated. The high court was not bothered by this. It held that if
the appellant was aggrieved with that, ‘she should approach the courts in Tanzania
[as] [t]his court does not have any jurisdiction to decide such an issue.’

[89] It is correct that a South African court does not have jurisdiction to decide an
issue which occurred in another country. But when a violation of entrenched rights
forms part and parcel of the deportation or extradition of a person to be tried in our
court s, it becomes our concern. In both Mohamed and Minister of Home Affairs v
Tsebe ,54 the Constitutional Court underscored that South Africa cannot extradite or
deport a person to a country where they face a real risk of the death penalty without
first securing an assurance that the death penalty will not be carried out . By parity of
reasoning, it should matter to a South African court where, in the process of extraditing
or deporting a fugitive from another country to South Africa, their rights are violated.
In the present case, the agreement between Tanzanian and South African authorities
to deport the appellant to South Africa, violated her right to choose her destination
upon leaving Tanzania, as provided for in s 25(2)( c) of the Tanzanian Immigration Act.

[90] This supports the view that her deportation was a disguised extradition. The
very fact of the existence of an agreement between Tanzania and South Africa
strengthens this view. As mentioned, cooperation between States is a non -
dispensable feature of extrad ition, while unilateral action by a State is a feature of
deportation. There are further pointers in the respondents’ own versions that the
appellant’s ‘hand over’ was an extradition disguised as deportation. For example,
Brigadier Richard Shibiri of the S APS explained the purpose of including a member of
the National Prosecution Authority in the South African delegation, as follows:
‘Adv LM Mgiba’s participation in the engagement as an NPA official was limited to ensuring
that in the event the persons’ identities were confirmed and they were returned to South Africa,
the State would be able to prosecute them should that be necessary.’ (Emphasis added.)


54 Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional
Development and Another v Tsebe and Others [2012] ZACC 16; 2012 (5) SA 467 (CC); 2012 (10) BCLR
1017 (CC).
36
[91] The identity of a person is immaterial when a person has to be deported. From
the point of view of the deporting State, all that is necessary is for the deportee to
depart from its jurisdiction. But the identity of a person is material where such a person
is also a fugitive from justice. Such a person can only be surrendered to a country
where they are sought for prosecution, by way of extradition.

[92] Furthermore, the respondents made it plain that if the appellant was correctly
identified, she would be returned to South Africa for prosecution. If that was the
purpose, she could only be legally brought back to South Africa through extradition.
On that u nderstanding, the South African delegation ought to have had an extradition
request to Tanzania. This explains why the Tanzanian authorities enquired from them
whether they had prepared such a request. They responded that they would be guided
by Tanzania. This was misguided. A decision to seek extradition did not lie with what
Tanzania intended to do. As a matter of international law, South Africa was enjoined
to make an extradition request because it s ought the presence of the appellant in its
jurisdiction in order to prosecute her.

[93] On the facts, it is clear that the South African authorities went to Tanzania with
only one purpose in mind – to take the appellant into custody for her to face
prosecution. The composition of the South African delegation is revealing: high-
ranking police officers, a member of Interpol, a Home Affairs official, a prison official
and a prosecutor. The reason proffered for the delegation flying to Tanzania is that
they needed to identify the appellant and Mr Bester. This is unconvincing. T he
identification could easily have been verified through the deoxyribonucleic acid (DNA),
which would not have required the delegation’s physical presence in Tanzania. To
demonstrate this point, confirmation of the appellant’s identity was verified throug h her
fingerprints. There is no explanation of what role any of the people comprising the
delegation played in this process.

[94] The result is that the South African authorities had failed to discharge the onus
resting on them to establish the lawfulness of them taking the appellant into custody
and detaining her until she was arrested upon arrival in South Africa. Their conduct
was therefore unlawful.

37
The criminal court’s jurisdiction
[95] In the circumstances, S v Ebrahim (Ebrahim )55 commands that our courts will
not exercise jurisdiction in a subsequent criminal trial. In that case, the appellant, an
anti-apartheid activist who had fled South Africa while under a restriction order, was
abducted from Swaziland by agents of the apartheid regime and transported back to
South Africa, where he was handed over to the police. He was subseque ntly charged
with treason. He challenged the jurisdiction of the court to try him because he had
been unlawfully abducted from a foreign country. The trial court dismissed that
application and ultimately convicted him of treason. On appeal, this Court unde rtook
an exhaustive survey of Roman and Roman -Dutch common law, which regarded the
removal of a person from an area of jurisdiction in which he had been illegally arrested
to another area as tantamount to abduction. That, this Court found, constituted a
serious injustice, and a court before which such a person was brought lacked
jurisdiction to try him or her.

[96] The Court held that the above rules embodied several fundamental legal
principles, including the promotion of human rights and the sound administration of
justice. The State was bound by these rules and had to come to Court with clean
hands. It was accordi ngly held that the trial court had lacked jurisdiction to try the
appellant and his application should therefore have succeeded. Both the conviction
and sentence were accordingly set aside.

[97] Ebrahim remains the lodestar, not only in our country but in other jurisdictions.
For example, it was applied by the English apex court – the House of Lords, in Bennett
v Horseferry Road Magistrates’ Court (Bennett ).56 It also inspired a powerful dissenting
opinion by Justice Stevens in the United States of America’s Supreme Court in United
States v Alvarez -Machain .57

[98] In Bennett , a New Zealand citizen who was in South Africa, was sought in the
United Kingdom (UK) for fraud. He was arrested in South Africa. On the pretext that

55 S v Ebrahim 1991 (2) SA 553 (A); [1991] 4 All SA 356 (A).
56 Bennett v Horseferry Road Magistrates’ Court and Another [1993] 3 All ER 138; [1994] 1 AC 42.
57 United States v Alvarez -Machain 504 US 655 (1992).
38
he was being extradited to New Zealand, the South African police, in cooperation with
their UK counterparts, flew him to the UK, where he was arrested by the UK police.
When he was brought before the magistrate for trial, he challenged the court’s
jurisdic tion on the basis that he was brought into its jurisdiction as a result of a
disguised extradition or kidnapping. He pointed to the complicity between the UK
police and th e South African police to secure his presence within the jurisdiction to
enable him to be arrested. His application having been dismissed, he approached the
Divisional Court of the Queen's Bench Division (the High Court) for jud icial review of
the magistrates’ court’ s decision. The High Court held that, despite the evidence of
collusion between the UK police and the South African police in kidnapping the
appellant and securing his removal from South Africa, the court had no jurisdiction to
inquire into the circumstances by which he came to be within its jurisdiction . It
accordingly dismissed his application for judicial review.

[99] On appeal to it, the House of Lords disagreed. It held that the maintenance of
the rule of law prevailed over the public interest in the prosecution and punishment of
crime where the prosecuting authority had secured the prisoner’s presence by having
him abducted from another state. Disregarding available procedures to secure his
lawful extradition to the jurisdiction of the court from the state where he was residing,
amounted to an abuse of process. For those reasons, the House of Lords concluded
that the High Court in the exercise of its supervisory jurisdiction, h ad power to inquire
into the circumstances by which a person was brought within the jurisdiction. If
satisfied that it was in disregard of extradition procedures the court could stay the
prosecution and order the release of the accused.

[100] In the present case, the high court, on the authority of Ebrahim and Bennett ,
held that Tanzania and South Africa’s cooperation to deport the appellant constituted
a disguised extradition. It reasoned:
‘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
39
not realize, was that such handing over of the applicant was in fact an extradition without any
process and not a deportation . . .’.58

[101] However, the high court nevertheless held that despite the finding of unlawful
disguised extradition, the appellant had to be non -suited because she did not object
to being transported back to South Africa. This is what the high court said:
‘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.’59
[102] For that conclusion, the high court placed reliance upon Mahala and December .
In Mahala , the two appellants were arrested by the Ciskeian Police60 but were
subsequently prosecuted and convicted of murder in South Africa. The trial court found
that the first appellant had voluntarily agreed to travel with the South African Police
(SAP) to South Africa where he was arrested. As to the second appellant , it was found
that although arrested by the SAP in Ciskei, he had acquiesced in the SAP
transporting him to South Africa, where he was arrested. The trial court accordingly
held that the appellants had not been unlawfully abducted and that it had jurisdic tion
to try them. On appeal, this Court h eld that the trial court was correct in concluding
that the appellants were neither unlawfully arrested in Ciskei, nor unlawfully abducted.
As a result, it was concluded that there was no violation of public international law
and/or South African law, or an infringement of the appellants' fundamental human
rights.

[103] In December , the appellant was brought from Ciskei to South Africa to stand
trial on charges of murder. This was done without either deportation or extradition
proceedings. This Court found that the appellant was not forced to accompany the
police but did so willingly because, at that stage, he had not been arrested. The Court

58 High Court judgment para 38.
59 High Court judgment para 39.
60 Ciskei was one of the four ‘independent’ Bantustans created by the apartheid regime as ‘countries’,
to further its policies of racial segregation. It attained ‘independence’ in 1981. The area was reintegrated
into South Africa as part of the Eastern Cape Province after the democrati c dispensation in 1994.
40
further held that there was no obligation on the police to explain the nature and details
of extradition proceedings. Accordingly, it concluded that there was no unlawful or
improper conduct on the part of any of the organs or functionaries of the South Af rican
State. Consequently, this Court found, that a South African court was not precluded
from trying the appellant.

[104] In both Mahala and December , this Court distinguished Ebrahim on the basis
that there was no evidence of prior unlawfulness on the part of the State functionaries
when the consent to be transported to South Africa was secured. Both judgments have
been trenchantly criticised in some academic writings.61 Counsel for the appellant
contended that they were wrongly decided, and urged us to overrule them on that
basis. Because of the view I take that both cases are distinguishable as explained
below, it is not necessary to embark upon the exercise to determin e whether they
should be overruled. Having said that, I must state that I harbour serious doubts about
the reasoning and conclusion in both cases. In light of the constitutional prism through
which the issue has to be considered, it is doubtful whether the y align with our
constitutional values.

[105] Be that as it may, Mahala and December established that where there is no
finding of illegality, the principle enunciated in Ebrahim does not find application.
Subject to what I have stated above, I accept for present purposes that the distinction
was well made. In the present case, the high court found that the respondents had
acted unlawfully by engaging in a disguised extradition. T here is, therefore, illegality
which preceded the handing over and the transportation of the appellant to South
Africa. Accordingly, this case is distinguishable from both Mahala and December . To
that extent, the reliance by the high court on the two cases was misconceived because
it had found an illegality in the form of a disguised extradition .

The appellant’s alleged consent to be transported back to South Africa
[106] As mentioned, the high court found that the South African authorities engaged
in an unlawful disguised extradition. This is a pivotal finding. Once it was made, this

61 See, for example, HA Strydom ‘Abductions on foreign soil – again: S v Mahala ’ (1993) 9 SAJHR 308;
J Dugard ‘Abduction: Does the Appellate Division Care about International Law – S v December ’ 1995
(1) SACR 438 (A)’ (1996) 12(2) SAJHR 324.
41
should have been the end of the matter, and the application ought to have been
granted on that basis. Because of the view the majority take, the first judgment does
not express a view about the correctness of this finding. In my view, the high court was
undoubtedly correct in that conclusion. However, the high court went on to find that
the appellant had consented to be deported to South Africa. It erred, in that regard,
for, the findings of unlawfulness and consent are incompatible.

[107] As mentioned, the consent defence was relied upon by the Justice cluster
respondents, but not by the Minister of Home Affairs. The Justice cluster respondents’
stance was that they had no direct role in the arrest and the return of the appellant to
South Africa. They maintained that their involvement was limited to escorting the
Department of Home Affairs officials. If that is the case, the alleged consent could not
have been made to the Justice cluster respondents, but only to the Department of
Home Affairs officials.

[108] It is noteworthy that the Department of Home Affairs did not assert that case.
Their stance, as discussed above, was that the basis for taking the appellant into their
custody and for transporting her to South Africa, was their agreement with the
Tanzanian authorities. A valid consent must be unequivocal. The very fact that the
respondents provide contradictory bases upon which the appellant was deported to
South Africa, shows, in my view, that the alleged consent was not unequivocal.

[109] At law, there are difficulties with the consent defence. There is no indication as
to what exactly was conveyed to the appellant before the consent was made. As
pointed out by the Constitutional Court in Mohamed , to be enforceable, consent must
be ‘fully informed’ and one clearly showing that the person consenting ‘ was aware of
the exact nature and extent of the rights being waived in consequence of such
consent.’62

[110] A fully informed consent in the present case would have entailed the appellant
being a pprised of at least two things. The f irst would have been that there was a
warrant of arrest pending against her, which would be executed upon her arrival in

62 Mohamed para 62.
42
South Africa. This is because the alleged consent to be transported back to South
Africa was pivoted on the appellant expressing a desire to be reunited with her
children. I f she was going to be arrested upon arrival in South Africa, reuniting with her
children was not going to be accomplished.

[111] Second, the appellant should have been informed that there was an extradition
process, which contained some safeguards for her protection . Those were aptly
explained by Lord Griffiths in Bennett as follows:
‘Extradition procedures are designed not only to ensure that criminals are returned from one
country to another but also to protect the rights of those who are accused of crimes by the
requesting country. Thus sufficient evidence has to be produced to show a prima facie case
against the accused and the rule of speciality protects the accused from being tried for any
crime other than that for which he was extradited. If a practice developed in which the police
or prosecuting authorities of this country ignor ed extradition procedures and secured the
return of an accused by a mere request to police colleagues in another country, they would
be flouting the extradition procedures and depriving the accused of the safeguards built into
the extradition process for h is benefit. It is to my mind unthinkable that in such circumstances
the court should declare itself to be powerless and stand idly by . . .’63

[112] There is no suggestion that the appellant was informed of any of these. Had
this been done, her response to being transported to South Africa might well have
been different. In any event, I am of the view that a valid consent can only be made
with prior and full knowledge of the rights being waived, and not after an infraction of
such rights had occurred . In the present case, the alleged consent would have been
made after the appellant had been unlawfully handed over to the South African
delegation, for the sole purpose of being brought back to South Africa. She was
already in an unlawful detention.

[113] What real choice, it may be asked, did the appellan t have in those
circumstances? On the common cause facts, it is safe to assume that had the
appellant indicated to the South African authorities that she wished to go to any other
country except South Africa, her wish would not have been respected. That would
have defeated the expressly stated purpose of the South African delegation – to bring

63 Bennett at 151.
43
her back to South Africa to face prosecution. Considered in this light, any consent
made in such circumstances would be illusory and consequently, unenforceable.

Conclusion
[114] I find that the agreement between Tanzania and South Africa to hand over the
appellant, and her subsequent detention by the South African authorities, were both
unlawful. So was the appellant’s subsequent transportation back to South Africa. The
result is that the criminal court in which the appellant was subsequently prosecuted,
lacked the jurisdiction to hear the case.

[115] Given the gravity of the allegations which led to the prosecution of the appellant,
this finding will understandably evoke indignation from the public. But the State, as the
repository of the rule of law, cannot be allowed to act unlawfully. In Mohamed , having
made a similar finding against the State, the Constitutional Court remarked:
‘That is a serious finding. South Africa is a young democracy still finding its way to full
compliance with the values and ideals enshrined in the Constitution. It is therefore important
that the state lead by example. This principle cannot be put better t han in the celebrated words
of Justice Brandeis in Olmstead et al v United States :
“In a government of laws, existence of the government will be imperilled if it fails to observe
the law scrupulously . . . Government is the potent, omnipresent teacher. For good or for ill, it
teaches the whole people by its example . . . If the government becomes a lawbreaker, it
breeds contempt for the law; it invites every man to become a law unto himself; it invites
anarchy.”64 (Footnotes omitted.)

[116] During the hearing, counsel for the appellant abandoned the relief to declare
‘unlawful and without legal effect’ the warrant for arrest issued in respect of the
appellant. Given that the majority of this Court dismisses the appeal, that point is of no
consequence. But it is, for this judgment, because its effect would have been that the
appellant’s detention and prosecution being unlawful, she should be released from
custody. To my mind, counsel’s abandonment of the prayer was correctly made. The
unlawful disguised extradition of the appellant has no bearing on the validity or
otherwise of that warrant, which had been issued before the disguised extradition.
Whether the warrant can still be executed in the light of the finding of an unlawful

64 Mohamed para 68.
44
disguised extradition, is a matter for the office of the Director of Public Prosecutions to
consider. If she is legally empowered to do so, she may still execute the warrant
against the appellant . But that would not have been a matter for this Court to decide.65

[117] The order I would have made is different from what the appellant had sought in
the notice of motion. There, she had sought an order against the SAPS on the basis
that its members had abducted her from Tanzania. Given the turn the case took after
the Minister of Home Affairs had joined to the proceedings, an order different from that
sought in the notice of motion is appropriate . This is because t he Department of Home
Affairs , on its own version, took t he appellant into custody from the Tanzanian
authorities and facilitated her deportation to South Africa. The Justice cluster
respondents admitted to having supported the Department of Home Affairs in that
regard. As the high court found, the conduct of th ese respondents was unlawful. The
order reflect s this , and recognises that the case has evolved , as it happens not so
infrequently in our courts . The totality of the evidence points to a different relief.

[118] In Modder East Squatters v Modderklip Boerdery66 (Modderklip ) the applicants,
at the hearing in the high court, sought a different order to that which they originally
sought in the notice of motion, as the original relief was no longer viable. The State,
as a respondent, opposed this. The high court declined to hold the applicants to the
originally sought relief. Endorsing the high court’s ruling, Harms JA explained:
‘In the court below the state objected to the new direction, wishing to hold Modderklip to the
relief originally sought. This objection was overruled by De Villiers J (at para 52), correctly
so. If a constitutional breach is established, this court is (as was the court below) mandated to
grant appropriate relief. A claimant in such circumstances should not necessarily be bound to
the formulation of the relief originally sought or how it was presented or argued . . .’
.67(Emphasis added.)

[119] Once a finding of a disguised extradition is made, the respondents have acted
unlawfully. Accordingly, as mentioned, I am obliged by s 172(1)( a) of the Constitution

65 See similarly, National Commissioner of Correctional Services and Another v Democratic Alliance
and Others (with South African Institute of Race Relations intervening as Amicus Curiae) [2022] ZASCA
159; 2023 (2) SA 530 (SCA); 2023 (1) SACR 492 (SCA); [2023] 1 All SA 39 (SCA); para 60.
66 Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd, President of the Republic of
South Africa and Others v Modderklip Boerdery (Pty) Ltd [2004] ZASCA 47; [2004] 3 All SA 169 (SCA).
67 Ibid para 18.
45
to declare their conduct unlawful. The appellant is entitled to effective relief, unbound
by what she originally sought in her notice of motion. To borrow from Modderklip , the
appellant should not ‘be bound to the formulation of the relief originally sought’, or how
the case was presented.

Order
[120] Had I commanded the majority, I would have made the following order:
1 The appeal is upheld with costs, including costs of two counsel to be paid by the
first, second, third, and sixth respondents, jointly and severally, the one paying the
others to be absolved.
2 The order of the high court is set aside and replaced with the following order:
‘1 It is declared that the appl icant ’s hand -over by the Tanzanian authorities to the
officials of the South African High Commission in Tanzania and/or the officials of the
second and sixth respondents, and the subsequent deportation of the app licant to
South Africa, were unlawful;
2 It is declared that the fourth respondent, under case number 20A/113/23,
lacked the j urisdiction to try the appl icant ;
3 The fifth respondent is ordered to forthwith release the app licant from the
Bizzah Makhate Correctional Centre where she is bein g held in custody and detention;
4 The first, second, third and sixth respondents are ordered to pay the costs of
the application, jointly and severally, the one paying the others to be absolved. ’

__________________
T MAKGOKA
JUDGE OF APPEAL
46

APPEARANCES
For the appellant : A Katz SC and K Perumalsamy
Instructed by: Machini Motloung Attorneys, Bloemfontein

For the first, second, third, fourth
and fifth respondents: N Snellenburg SC and M Mazibuko
Instructed by: State Attorney, Bloemfontein .