WATCH: Nandipha Magudumana’s lawyers argue on her deportation!!

Added: 2026-05-20

[00:00:00]circumstances, would you still insist that we find that the conduct of the state officials was unlawful?

[00:00:06]That a South African court should not live.

[00:00:10]Because that wouldn't be condoning it.

[00:00:12]The court would in the strongest terms express its view and set its face strongly against that conduct.

[00:00:18]It would potentially give it a claim for for damages, I don't know.

[00:00:22]But on your version, if she was to be extradited, she would be she would have to spend time in a Tanzanian court uh waiting extradition to see this but that's not really you know what I mean.

[00:00:35]So that's my question. All right, sir.

[00:00:36]I'm sorry to interrupt you. Let me let me go back to your premises a little bit what the importance of dialogue would be there.

[00:00:43]Your dissenting judgment in Southern Justice Coalition disagreed with the notion of the binary concept of jurisdiction for the reason that you articulated.

[00:00:52]And we, as happens to be, that Mr. Piramalswami and I were in the Shultz to Romer case but not in the Tralala part of the case.

[00:01:03]And this court found it non-entirely Let me put this right. It found the jurisdiction wasn't binary for the reason that was articulated by Tralala in the context of the Tralala extradition. In our part of the case, that issue fell away. It didn't arise for the reason that the court found.

[00:01:23]But what Tralala did do for the for the whole court was to say that the balancing of knowing of immunity must be balanced and he refers to Lactic and Hosferry Road for this with the notion that the administration of justice must not be brought into disrepute. And those are the words that we submit this court should focus on if the court gets to it on the basis of of a disguised extradition.

[00:01:51]And the question is this. And all the cases have Hosferry Road says it clearly. A court South Africa should not lend its process in the context of administration of justice when there's been the kind of conduct that we would submit is to be found here. And that's the real test.

[00:02:13]Yes, impunity is something that we all accept as a general proposition, those who are alleged to have done criminal acts should be tried. We accept that.

[00:02:24]But not in circumstances when bringing them to court in the manner of a handover disguised nefarious charade ruse, that would bring that type of conduct and the use of state machinery of the courts would bring the administration of justice of justice. And just give me a second, the third the third threat, I think you described it as public opinion. The third threat was public opinion, but it was also this question of That's the price you pay for living in a society where the rule of law is that threat. And that's what was said in Tebe, but Tebe I presume would have received impunity because of the price that we as a society have chosen to walk a particular path, and that is a rule of law path. It's unfortunate.

[00:03:17]Nobody likes it.

[00:03:18]Okay, but So, Mr. Katz, just quickly, questions on that. Would you accept on the first one that this is not any grand type of case, nor is it a traditional case. It may be somewhere in between.

[00:03:31]And that ultimately this court must make a value judgment with regard to the egregiousness of the conduct and the degree to which it does not conform to to what uh and and determine a just and equitable remedy on that basis. And that's within this court's wide discretion.

[00:03:49]Then uh arising out of that, I think we need to be careful about the price we have to pay because the price we it's it's not an all or nothing.

[00:04:01]Um a court can equally be clear and firm about the need for the state to conform its conduct to the highest standards of legality and constitutionality.

[00:04:12]And it can do so in a manner that strikes the appropriate balance.

[00:04:18]In some cases it may not be possible.

[00:04:21]Where the court might be obliged to say, "Well, you should not exercise jurisdiction because the egregiousness of the conduct is such that if you do so, it will bring the system into disrepute."

[00:04:33]But we must make the case >> [clears throat] >> that in this case that would be the outcome. Well, that's what the court is saying.

[00:04:39]It would be difficult to disagree with the ideas that you Justice put to me, but we would suggest that although Abraham might be somewhat on spectrum of kind of egregiousness of conduct, this case is very close to it. And you Justice put to me You put it to us, why do you say it's close then? Because you're saying that there was an agreement on deportation.

[00:05:03]So, there was an attempt, there was a plea of reported attempt to bring their conduct within within the law even though it was misguided. No, no, no. There was an agreement to say The exact opposite is being done. That agreement was unlawful in terms. It was a ruse, it was a charade. There is no agreement on deportation. And they knew it wasn't that they didn't know. If they made a mistake, a bona fide mistake, a lot of water then one would have to accept that the 172 1B just an equitable debate would have some meaning, but not in a case like this.

[00:05:37]This was a ruse from start to finish.

[00:05:40]They had no power being there. I'm not sure the evidence supports that. What is maybe we can leave it at that. Well, Justice can you answer this question, rhetorical.

[00:05:49]And this is what the minority puts in the on the paragraph that are Why did the police go there in the first instance?

[00:05:58]Where did they get the power to do it firstly? But let's assume they have the power, a power that doesn't exist. Why were they there?

[00:06:05]They were there to achieve an extra to find that there were people who there the police wanted to prosecute. That's why they went.

[00:06:15]Start to finish. And the Tanzanian said to the South African delegation, "Are you going to send an extradition request?"

[00:06:23]And the South Africans responded, "What do you say?"

[00:06:27]That's not the conduct of a state which should be able to use the machine machinery of the courts to do the necessary issue of prosecuting persons. The South Africans from day one behaved in a fashion which undermines the rule of law one-on-one. And this case is we would suggest is like Wuscher. It wasn't that Ibrahim conduct that was It was straight with Bennett.

[00:06:56]It was called quoted with approval in the in the context of the disguised extradition. There the >> [clears throat] >> the House of Lords found that the let's call it the collusion between the various parties and the South African government South African British government rendered the conduct of the government such that the English court should not exercise their jurisdiction. Very similar to that. Well, ours is worse actually, but that's not the point. You don't have to get to Ibrahim to be able to find that no jurisdiction run in our case. I I've heard you.

[00:07:29]Thanks, Mr. Guest. Maybe we might take different views on that.

[00:07:35]That's That's I wish to direct you to certain passages in the judgment of the SCA.

[00:07:54]These passages talk to to the pleadings.

[00:08:02]I start with this paragraph 16.

[00:08:12]And where the SCA described one of the issues to be fought.

[00:08:21]And then Roman numeral one in paragraph 16 it says, "Was the appellant arrested in Tanzania by members of SAPS or Tanzanian authorities?"

[00:08:38]And paragraph 21 the SCA seems to answer that question.

[00:08:43]It says, "Since the appellant was seeking final leave in the matter in terms of what trust and evidence was, this had to be decided on the minister's discretion. Now, with the minister in denial, she was arrested by members of the SAPS.

[00:09:01][clears throat] And the F- the SCA says, "This evidence shows clearly that the SAPS did not take any action against the appellant until her arrest in Tanzania."

[00:09:16]So, what I want to put to you today is what we've just alluded to and what we were discussing with my colleague and team.

[00:09:25]If SAPS or what was the role of the SCA?

[00:09:30]SAPS going all the way from South Africa to >> [clears throat] >> to Tanzania.

[00:09:40]and was immediately escorted and if so escorted who?

[00:09:45]And if if SARS had not gone in in time, does it mean that whoever or whatever the persons who had to go there, they couldn't do what they had to do absent SARS?

[00:10:04]Well, Mr. Mkhwebane, my interest I mean an interesting position of my lady with your question is one that sort of leads to a favorable a favorable decision to my client as as against the former. I'm just I'm just exploring it. I'm just testing the waters. But I've got an answer like this which which is which is in our view an incorrect summation in paragraph 21 as you as you put it.

[00:10:30]They say it had to be the South African Minister of Police's version since his evidence shows clearly that and then there's a what the evidence shows except that's not evidence.

[00:10:40]And then he says did not take any action.

[00:10:44]That's not true.

[00:10:46]We reject that in the firmest of terms. For a policeman to stand next to a Home Affairs official or next to a High Commission official to witness, to secure the handover is taking action in Tanzania.

[00:11:03]It can hardly be suggested that police presence in Tanzania when somebody is handed over and the police witness the handover and they're there to protect the [cough and clears throat] people who are being handed the recipients of the handover, that is by definition action.

[00:11:21]Can I Can I Can I put it differently?

[00:11:24]If something wrong were to happen to to the suspects and the police are there, would not liability arise from their of omission?

[00:11:35]Because police are there.

[00:11:37]But then what Our lawyers are there.

[00:11:40]No.

[00:11:42]Minister says police did not take any action. They were just escorting the people there. Escorting, not putting them differently.

[00:11:50]If argument's sake something different had happened and the police are there and we know the police duties to protect and they did not protect.

[00:12:04]Would they not attract a liability on the basis of omission?

[00:12:10]Oh.

[00:12:11]I would just thought not. But more importantly, we also look at the question and this is a real question.

[00:12:17]If Mr. attacked Lekota would the police have been able to do anything? That's what I'm putting to you, but That's the real question. The real question is what could they do if Mr. did what was threatened? He was a dangerous man and and the honorable Mr. Mathole Motshekga needed protection. Say what the police allowed. Not acceptable.

[00:12:37]So no, no, not acceptable but not lawful. Something like that.

[00:12:41]But that's That's why I say that it's you can't cannot be suggested that because no incident occurred it is suggested that they did not take any action.

[00:12:51]Uh it just Whatever. Then it goes on in this next sentence, "The version put forward on behalf of the police and others cannot be said to be far-fetched or clearly untenable. The version of the police is that members of the set were not involved in an arrest or a removal, but they were. They were there.

[00:13:08]They were involved. I accept that they weren't in involved in the arrest necessarily.

[00:13:14]But her removal, they said they were involved.

[00:13:18]Let's go Let's go to the pleading instruction of the police.

[00:13:22]With the pleading of paragraph The pleading No, just give me the pleading in in broad terms.

[00:13:29]We have the number of motion.

[00:13:32]Which did not sign in the 60 days period.

[00:13:36]The notice of motion means appearance, general appearance.

[00:13:41]Right?

[00:13:42]You would say and then you open the the minority said in the notice of motion if if you read the founding affidavit allegations about this guy has put in the name and submissions there.

[00:13:59]And then you go to the replying affidavit.

[00:14:02]The replying affidavit for lack of better words, sought to improve what [cough and clears throat] was stated in the founding taking into account the answer.

[00:14:18]Right? It's more for is because of the answer. Yes.

[00:14:21]Now, that's how pleadings are supposed to be considered. Yes.

[00:14:29]If as the minority says the the respondents cannot claim that there is a a new matter because it was foreshadowed one in the founding affidavit two in the reply as a result of the response in the answer.

[00:14:55]Therefore, this was consistent with the pleaded case that was before the High Court.

[00:15:04]>> That's the thing.

[00:15:05]That's that's all.

[00:15:09]The SCA as I understand in the joint judgment just decided the case on another point.

[00:15:16]To say you did not plead because you did not plead, it's a new matter, and because it's a new matter uh it could not expect [clears throat] uh the Department of Home Affairs or the state the other state respondents would respond to the new matter. They would plead to that.

[00:15:37]Therefore, the rules of pleading says you are confined to the four corners of the pleadings. Absent that, you have but the minority has also determined you it is that view that that brought us here.

[00:15:52]That's all. And it is that view that I want to interrogate.

[00:15:55]Well, we would say that the view of the majority um we submit is was an inappropriately is what really brought us here.

[00:16:07]If there had been five judges or the other four judges that signed on to the minority, we might not be here.

[00:16:14]We're here because of the four rather than the one.

[00:16:17]The one wasn't wrong in our submission.

[00:16:22]The four weren't wrong.

[00:16:24]And that's why we're here.

[00:16:26]In the in the minority judgment, there is some reference being made to I think it's a four-cornered position if I would be descriptive.

[00:16:37]That the point about the disguised establishment may be considered to be a point of law.

[00:16:46]And if it's a point of law, and if it's a shadow to the pleadings, it's it's a basis [clears throat] of any time. Would that be a a proper finding?

[00:16:55]Is that Is that Is that a point of law?

[00:16:57]We argued that it isn't. We argued it in the SCA. We said that if one looks at the facts as presented, the facts, the legal consequences of those facts addresses the disguised definition.

[00:17:09]And it's a term of art. Even if Even if Justice Froneman, even if the words disguised establishment extradition in the replying affidavit.

[00:17:18]It would still be open for us to argue that this was a disguised extradition.

[00:17:23]In the same way that I know that Justice Froneman distinguishes it perhaps, but what is the smart? These are terms of art, legal terms of art.

[00:17:32]If if if the evidence shows that the government used a deportation to achieve an extradition, that's what the evidence shows.

[00:17:41]And it's there's no way in the evidence that the words the South South African extradition appeared in the record on this in that in that form in express terms in the pleadings.

[00:17:50]It's perfectly legitimate form for us to argue this was a disguised extradition. If that's what the evidence shows, and the evidence does show it in our submission.

[00:18:00]I I know you do a lot of these cases, and but there are certain facts that trouble me.

[00:18:09]And and and one is the one that we just got past.

[00:18:14]Uh on on on this guy's extradition.

[00:18:19]It's one way to say that the authorities in Tanzania were fully aware about how a suspect has to be transited to their country.

[00:18:33]By virtue of that, they did ask the South African authorities.

[00:18:36]You are here.

[00:18:38]I will commence with you extradition processes.

[00:18:42]And the South African authorities say, "No, we don't But do people get handed over in the circumstances that uh the applicant and the Tanzanian authorities are aware? I I want to answer in two ways, uh Justice Matope.

[00:18:59]The South Africans did not say no. They said they would be guided by what the Tanzanians would agree to.

[00:19:04]So, they never said they would.

[00:19:05]If the Tanzanians had said, "Bring an extradition," they would have had to bring it.

[00:19:11]Number one.

[00:19:12]Number two, your question, which is a key question if as we understand it is, is what happened here a regular deportation under Tanzanian law?

[00:19:23]Now, I know and I accept that this court cannot or should not venture into the question of did a foreign government act lawfully in terms of its law in that country.

[00:19:36]This court is only concerned with the South African the conduct of the South African government.

[00:19:40]And there's the doctrine of the act of state which which suggests that this South African court should not consider the validity of conduct by a foreign state.

[00:19:49]Let me put it differently. Did the South African authorities act lawfully by traveling to Tanzania to collect [clears throat] the the the evidence? Well, well, well, well, they didn't act lawfully in three senses. One, they didn't act lawfully in an international sense.

[00:20:11]There's no international law provision that allows Two, they didn't act lawfully in terms of the constitution. Three, they didn't act lawfully in terms of any legal provision. There's no legal provision that allows for what they did that we know. And the only one that's pointed to section 41, but section 41 doesn't talk to any of this kind of conduct.

[00:20:31]So, we would submit that on any level this is the kind of unlawfulness that is staring the court in the face. But, leave aside that for a moment. That's So, if I talk to Justice Froneman's debate and say, "Well, this was unlawful. They thought they could go under section 41, but they couldn't." That's a normal type of situation. Then one could understand the debate that Justice Froneman and I are having about Rendition. But, this isn't one of those cases. This was collusion. It was a charade. The entire saga was in order to achieve that which could not be achieved under the immigration laws of Tanzania. If one had regard to what the what the South Africans say, Tanzania relied upon Section 25(2)(c) of the Immigration Act of Tanzania, which Justice Mokgoro does deal with. My Lord, she does deal with.

[00:21:23]This isn't one of those cases.

[00:21:25]25(2)(c) has got nothing to do with the case at hand.

[00:21:28]25(2)(c) is a case where I know that this court isn't geared towards answering questions about Tanzanian immigration laws and statutes.

[00:21:38]But if the court and Justice Madlanga did consider it in some respects. But if one considers the provisions of that of the section, which is quoted by SAPS, doesn't deal with asylum. The Tanzanian Let Let me finish.

[00:21:55]If you look at the four corners of the applicant's filling case, do we find that uh without attaching [clears throat] any label, because it looks to me that we should be careful not to be putting unnecessary labels.

[00:22:15]Because if you put labels, that's where you fall.

[00:22:18]If substantively on the four corners, there is a case made out that what there was a disguise, the Yeah? Whatever you Whatever I don't want to say deportation or extradition. Or an unlawful removal.

[00:22:39]And and and and and and an unlawful unlawful removal. Unlawful removal and then Then a party in the position of the respondents, one must Do you know what case you are arguing? If If they do, are you pleading [clears throat] this because no label has been attached?

[00:22:59]Absent the label, is there a case that you you are to meet? Absolutely.

[00:23:05]That's That's all That's That's the question. And if one looks at the founding affidavit, one looks at prayer operated to the court, prayer two of the notice of motion, that case is squarely there.

[00:23:15]South Africa removed the applicant from Tanzania, assisted the removal of the applicant from Tanzania to South Africa, founding paper prayer two.

[00:23:27]>> [clears throat] >> There are answers to that, which the court can ignore, such as the original arrest, which South Africa has given a full answer to, but not the removal. The answer to the removal is the following one.

[00:23:39]Would the fact that there was no prospect uh be a floor in the judgment of the majority when you did that?

[00:23:52]BF brought this first to the floor. Yes.

[00:23:54]Yes. Yes. Yes. We would suggest that.

[00:23:55]But that my Lord my minority points out, minority said there's a floor. If my minority said there was a floor.

[00:24:02]Say so.

[00:24:04]And if And if you would say my Lord, what struck me in in preparing how much time unusually maybe the court