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May 22 21 tweets 4 min read Twitter logo Read on Twitter
Why Thabo Bester’s arrest was unlawful (A Thread).

Dr Nandipha Magudumana is challenging the lawfulness of her arrest which should lead to her immediate release and possible inadmissibility of evidence against her, and rightly so in my opinion.
But it is the arrest of Thabo Bester itself that sheds the light on the unlawfulness of the actions of the police.
In a democratic country, the process followed by the police in the apprehension of a criminal and gathering of evidence is as important as the crime itself. The police should not commit a crime in trying to expose the crime committed by the suspect, otherwise the crime
is ‘excused’ and the suspect walks free.

Here is how the police committed a crime in the arrest of Thabo Bester, we will get to the arrest of Dr Nandipha later. First of all, the police needs a warrant of arrest before they can arrest anybody. An arrest warrant can only be
issued against living people, and not against dead people. Thabo Bester at the time of his arrest either in Tanzania or Lanseria was officially dead with a death certificate issued against him.
How then did the police issue a warrant of arrest against a dead person? That is the first crime committed by the police if the police did indeed issue a warrant of arrest against Thabo Bester.
The correct procedure would have been for the police, home affairs department and the justice department to revoke the death certificate against Thabo Bester first before they can even attempt to arrest him. This would have required them to apply to the High Court for a death
certificate to the revoked.
The High Court would have required the police to provide DNA evidence that indeed Thabo Bester is still alive. The police can accomplish this in two ways: firstly, they could DNA test the burnt dead body that was found in
Thabo Bester’s prison cell against the DNA samples that they have (or against his mother’s DNA), but we know that body is alleged to have been buried secretly by Dr Nandipha, as such the police does not have access to that DNA evidence.
Secondly, they would need the person purported to be Thabo Bester to volunteer himself for DNA analysis, but we know this was impossible since this person was allegedly on the run. This is where the police commit another crime. They know that this person purported to be Thabo
will never volunteer for a DNA test, but the police needs that DNA evidence.

The pictures circulating on social media of Thabo allegedly shopping at Woolworths are useless at proving anything, they are just conjecture. Dr Nandipha’s brother’s evidence is also useless at
this stage, as the police need DNA evidence otherwise the High Court won’t revoke the death certificate.

Without having any inside information, we can safely assume that the High Court did not revoke the death certificate of Thabo Bester for lack of evidence. And if the court
did grant such application then it would have been published in the government gazette and newspapers to notify interested parties like insurance companies and family members.
If you are a life cover insurance and had paid out to Thabo’s family, you would want to know that he is actually still alive so you can recover your payout, hence the publication of such information in the gazette/newspapers. No such publication happened, so we can safely assume
that the death certificate stood at the time of the arrest.

Knowing that they needed the DNA evidence from Thabo to prove that he is still alive, and not being armed with any arrest warrant, the police kidnapped Thabo in Tanzania or Lanseria and took his DNA samples against
his own will. That’s three crimes: kidnapping, assault and illegal gathering of evidence.

The police then used this unlawfully gathered DNA evidence to prove that Thabo is indeed alive and then revoked the death certificate. All the criminal charges that both Thabo and
Dr Nandipha are facing flow from this poisoned tree, hence inadmissible in court and should ensure that both walk free from the charges.

Here is the problem with Thabo, he was already a convict and was a fugitive from the law as such he can’t walk free.
However the current charges he is facing cannot stand, as the evidence was gathered unlawfully. But it gets even complicated for Thabo.

Do the police even need an arrest warrant to re-arrest a fugitive? No they don’t, a simple recapture process is necessary.
But how do the police justify the crimes they have committed to ensure the re-arrest of Thabo, and the subsequent arrest of Dr Nandipha? Those crimes may not matter against Thabo because he’s already a convict, but they certainly do matter against Dr Nandipha hence she is
challenging the lawfulness of her arrest.

Why #DrNandiphaMagudumana's arrest was unlawful to follow next.
The legal principle remains, you don't arrest people so you can gather evidence against them, it's unlawful. You investigate then arrest people, not the other way around. Anything else is unlawful regardless of how inconvenient it is to the police. They arrested Thabo so they can… twitter.com/i/web/status/1…

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