Legal showdown: Ndimande brothers face extradition for AKA’s murder
In its fight to have the Ndimande brothers, who are accused of killing South African rapper Kiernan ‘AKA’ Forbes and his friend Chef Tebello ‘Tibz’ Motsoane, be tried in the country, the State in Eswatini has approached the Supreme Court of Appeal.
AKA and Tibz were brutally killed in February 2023 on Florida Road at Wish restaurant in Durban.
The siblings, Siyabonga Gezani Ndimande and Malusi Dave Ndimande, had appealed against the Manzini Magistrate’s Court extradition order after the SA government applied to have them return to face the music for their alleged crimes. The brothers were found liable to be brought back on August 16 last year.
A written judgment was handed down and served on September 23.
On October 15, the Prime Minister of Eswatini issued a surrender order under Section 11 of the Extradition Act. The duo’s legal team filed a notice of appeal and grounds of appeal on the same day regarding the ruling that they are liable to be extradited to SA.
According to the National Prosecuting Authority spokesperson, Khethukuthula Sangweni, the State contended that the notice of appeal and grounds of appeal was filed out of time, and approached the High Court of Eswatini to set aside and/or strike off or dismiss the notice of appeal and grounds of appeal filed by the defence.
The application was argued and heard before Judge Sabelo Masuku on November 19. Judge Masuku dismissed the application by the State after considering the decision of the learned judge. The State elected to appeal his judgment.
Moreover, Sangweni said the State approached the High Court of Eswatini on an urgent basis to seek a certificate of appeal from the learned judge to appeal the matter in the Supreme Court.
“The matter was argued on December 20, 2024, before the Honourable Judge Masuku who granted the certificate of appeal. An application has been filed with the Supreme Court for the hearing of the appeal. The State is awaiting the set down of the matter in the Supreme Court. The date(s) will be allocated by the chief justice of the Supreme Court,” explained Sangweni.
Legal analyst and attorney, Abigail Ngobeni, said the State in Eswatini is escalating the matter, as the defence won the argument on whether they filed their leave to appeal against the magistrate’s court decision on time or not.
“One cannot be able to tell whether the State has the strongest case to take the matter to the Supreme Court of Appeal given that we are privy to the times,” she said.
Ngobeni said if the Supreme Court of Appeal rules in favour of the State, the duo may come back to South Africa quicker. However, if the court rules in favour of the brothers, the appeal may be ventilated in the High Court of Eswatini.
“Depending on whether they are satisfied with the decision of the high court, it can go to the Supreme Court of Appeal,” she said.
She said what is happening with the Ndimande brothers in Eswatini does not really have an impact on their five co-accused here in SA. However, should they come back early before the start of the trial of Lindokuhle Thabani Mkhwanazi, Lindani Ndimande, Siyanda Myeza, Mziwethemba Gwabeni, and Lindokuhle Ndimande, they would all be tried together.
If they do not come back in time for the trial, we may be looking at the separation of trial, she added.
“We would be looking at a separation of trial, where here in SA the trial of the five accused men in SA would start and continue without the Ndimande brothers,” explained Ngobeni.
This week, Gwabeni and Lindokuhle applied for bail again, saying it was based on new facts. The Durban Magistrate’s Court will hand over its judgment on Wednesday.
On February 7, the State is expected to serve the five accused with indictments.
nomonde.zondi@inl.co.za