Best Of Bester: Deportation And Escape

Jesse Hanekom – Candidate Attorney

Abrie van der Merwe – Associate

Thabo Bester, a convicted criminal serving his sentence at Mangaung Correctional Centre, staged his death in 2022 and thereafter fled to Arusha, Tanzania with his partner, Dr Nandipha Magudumana. The pair were believed to be illegally in the country and subsequently deported to the Republic at a hefty price of R1.4 million on the 8th of April, according to Police Minister Bheki Cele and Home Affairs Minister Aaron Motsoaledi. These recent headlines have sparked debate on numerous points of law and peaked the public’s interest. More recently in the media was a discussion of deportation and extradition, which are discussed herein. Moreover, is there a happy ending for Bester and Magudumana?

Extradition v Deportation

Extradition in South Africa is regulated by the Extradition Act 67 of 1962 (“the Act”)  and this is done in terms of section 2 of the Act pertaining to extradition agreements.  The provisions of section 2 allow for states to enter into a reciprocal agreement wherein contracting states agree to surrender persons accused or convicted of an offence within the jurisdiction of the Republic or the contracting state.  Further to that section 3(2) of the Act allows for the President to consent to the surrender of a person in response to a state with which the Republic has no extradition agreement.

Deportation, on the other hand, is regulated in terms of the Immigration Act 13 of 2002.  At the centre of deportation is the apprehension, detainment and deportation of an illegal foreigner.  Given that Bester and Magudumana had allegedly not entered Tanzania through its proper channels, the Tanzanian Government would have considered them to be illegal foreigners, which resulted in the State deporting them back to their country of citizenship, being the Republic.

According to various sources and experts, the procedure of deportation was used instead of extraditing Bester and Magudumana, since it is much faster and less arduous.

Escape from lawful custody

Bester faces, among others, charges for escaping from prison.  In respect of the charge for his prison break, section 117 of the Correctional Services Act 111 of 1998 provides that any prisoner who escapes from custody is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to imprisonment without the option of a fine or both.  Moreover, in S v Nyumbeka it was held that “escape does not entail any element of a permanent or unlimited recovery of freedom so that even a brief period of freedom suffices”.

This matter is ripe with many more interesting points to discuss, including but not limited to his chances on an application for bail, potential charges he could end up facing, the arrest of his co-perpetrators and conspirators and their respective criminal charges, et cetera.

Some of these points will be discussed and elaborated upon during our Facebook Live event at 15:00 on 12 May 2023.

Facebook Live Event


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Kindly note this article is intended for general information purposes only and does not constitute legal advice. Should you need legal advice, please contact one of our legal practitioners.

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