THE State’s case in rapper AKA’s murder matter could hit rocky ground if the surrender of two further accused, who were supposed to be extradited from eSwatini and join this week’s proceedings in the Durban Magistrate’s Court, is not secured.
According to the surrender order issued by eSwatini Prime Minister Russell Dlamini, brothers Siyabonga Ndimande and Malusi Ndimande ought to have been successfully brought back to South Africa by Friday November 29.
The National Prosecuting Authority's bid to have Siyabonga, 29, and 28-year-old Malusi, both of KwaMbonambi, extradited seemed to be on the right trajectory when their application was granted in the Manzini Magistrate’s Court on August 16.
The brothers’ legal team filed their notice to appeal Magistrate DV Khumalo’s extradition decision on October 15, which was a day after Dlamini rubber-stamped the surrender order.
With a time-limit of 45 days for the surrender order to be completed, an urgent application was brought before the eSwatini High Court by their Director of Public Prosecutions, opposing the appeal, and heard on Tuesday.
The presiding Judge is yet to hand a ruling.
If that judgement is made early this week and the outcome is in favour of the eSwatini DPP, it is possible that the siblings could join their co-accused in the Durban dock on Friday.
The Prime Minister would be required to make a fresh surrender order if his current endorsement is not executed before the deadline.
Dismissal of the urgent application would enable the brother’s legal team comprising Durban-based lawyers (advocates Simphiwe Mlotshwa and Mkhululi Nkomo and attorneys Avir Maharaj, Sibusiso Dlamini) and eSwatini attorney Sivesonkhe Ngwenya to advance their clients’ appeal.
Such an outcome would present further delays and greatly hamper the Durban proceedings.
The pair together with Lindokuhle Mkhwanazi, Lindani Ndimande, Eddie Myeza, Mziwethemba Gwabeni and Lindokuhle Ndimande have all been accused of having a hand in the murder of AKA (Kiernan Forbes) and his friend Tebello “Tibz” Motsoane.
They were shot dead outside a restaurant on Durban’s Florida Road on February 10, last year.
The accused face various charges, including murder, attempted murder and conspiracy to commit murder, and were all denied bail.
In their urgent application, the eSwatini DPP contends that notice of appeal filed on behalf of the two accused was done outside the stipulated time-frame, and the surrender order was also handed.
Therefore, the appeal bid by Siyabonga and Malusi who were arrested on February 24, should be dismissed.
Lomvula Hlope, eSwatini’s acting DPP, filed an affidavit.
Hlope said apart from the charges related to the AKA matter, both accused played leading roles in the alleged broad-daylight murder of a taxi-boss outside the Seadoone Mall in Amanzimtoti.
The NPA believes that the November 2022 killing was over taxi routes the accused’s family wanted to take over.
Siyabonga was implicated in another taxi-related killing (March 2023), where he was believed to be orchestrator of the hit that was carried out on the wrong person.
In the AKA matter, the NPA believes Siyabonga also played a prominent role and Malusi was one of the shooters.
Hlope said Magistrate Khumalo delivered his written judgement on September 23 to the Clerk of the Court (Khetisiwe Dlamini) who directed it to Macebo Dlamini, the Principal Crown Counsel in the DPP’s office.
Khetisiwe Dlamini telephonically informed Ngwenya that Macebo Dlamini would deliver the ruling to his office on the same day.
The date on which the accused’s notice to appeal was lodged on behalf of the accused is another contentious issue.
It is understood that an appeal of Khumalo’s ruling was supposed to happen within 15 days from the date the decision was taken (September 23).
Hlope and others believe that the deadline for the appeal to have been lodged was October 8.
“The reference to ‘days’ in the Extradition Act (eSwatini) is reference to calendar days not court days.
“The respondents noted their appeal out of time on October 15, 2024,” read Hlope’s affidavit.
She said the High Court did not have jurisdiction to condone the late filling of the appeal motion and that the Prime Minster’s surrender was done lawfully on October 14.
“Failure to appeal timeously means there is no limit on the execution of the surrender order.
“They must be surrendered to South Africa by November 29.”
Hlope said if that deadline was not met, the surrender order could not be executed. Therefore, they made the urgent application.
She claimed that the accused delayed the extradition process that has already spanned seven months with their “lackadaisical manner”, said Hlope.
The brothers insisted that they “never participated” in the crimes they were accused of, fled the country because of “taxi wars” which has accounted for the lives of 12 family members and they were also under threat.
In his affidavit, Siyabonga said the attempt to bar their appeal was “wrong-in-law”.
He accused the DPP of violating a well established tenet of natural justice, which was the “audi alteram partem principle” (the right to state their version).
Siyabonga said that his attorneys received Khumalo’s ruling on September 24.
He emphasised: “A court day means any day other than a Saturday, Sunday or public holiday, and only court days should be included in the computation of any time expressed in any order of the court.”
He said Khumalo’s ruling did not state that the 15 days included weekends and public holidays.
Therefore, the DPP’s application was on “shaky ground” both legally and factually regarding their calculation and definition of “days”.
Siyabonga pointed out that the Prime Minister’s order was not served on them and only became aware of it during the urgent application, and it was reviewable.
Siyabonga believes that the DPP’s action was clothed as an urgent application but was actually a reply to their notice of appeal.
In her replying affidavit, Hlope said the accused relied on SA Constitutional rules for time computation.
“Each country remains sovereign in respect of how time periods are calculated.,” she said
In the accused’s heads of argument they questioned why Khumalo’s judgement was not handed in an open court.
“This information on dates by the committal (Khumalo’s) court is so seriously material because of its potential to influence this court in deciding when exactly the clock starts ticking in light of the 15 day period.
“No explanation has been given by the committal court to conduct extradition proceedings in open court but not hand down full judgement in open court, which has created a great deal of confusion in the computation of 15 days,” said the respondents in asking for the application to be dismissed.