By Thokozani Mazibuko
The extradition case of Siyabonga Gezani Ndimande and Malusi Dave Ndimande, two South African nationals accused of the murder of South African musician icon Kiernan Jarryd Forbes, also known as AKA, his friend Tebello “Tibz” Motsoane, and others, has been postponed to June 14, 2024, for arguments.
After the South African Director of Public Prosecution (DPP) strongly opposed the respondent’s attorney’s request for more details to prepare their opposition to the extradition application,
The case was postponed at the Manzini Magistrates Court by Principal Magistrate David Khumalo.
Principal Crown Counsel Macebo Nxumalo stated in court that the respondents were previously instructed to formally apply for more details during the last court appearance.
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However, he said that on the day they were supposed to apply, they did not do so, but rather they served them with a letter, demanding further particulars.
“Your Lordship, the question that remains to be asked is; what happened to the court order that was issued by this honourable court according to our view, it still stands as it was not set aside, however, that is for the court to decide,” Nxumalo said.
He further mentioned that after being served with the letter, they forwarded it to the requesting state, the Republic of South Africa.
He mentioned that the Director of Public Prosecution (DPP) in KwaZulu Natal duly responded to the letter.
Nxumalo stated that the DPP filed an additional affidavit, which was served to the court on May 10, 2024.
He mentioned that the response from the DPP can be found on page two of the additional information of the affidavit, extending to page 24.
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He specifically highlighted page 17, paragraph 39 of the affidavit, where the DPP addressed Rule 21 of the High Court of Eswatini.
In paragraph 40, the DPP expressed her view that the definition of a Committal Court, as outlined in paragraph 16, pertains to a magistrate in a magistrate’s court.
Therefore, she argued that Rule 21 of the Eswatini High Court Rules is not applicable.
He mentioned that although the letter was filed under Rule 21 of the High Court, which is not applicable, the DPP took time to respond by articulating the position of the law in respect of the request for the full disclosure of the docket, which contains the names of the witness that will testify in the matter.
Nxumalo further drew the court’s attention to page 23 paragraph 60 of the affidavit wherein, he said the DPP noted in the correspondence marked as Annexure AEH,
Where it says possession of firearms (which the suspects were never found in possession of when they were arrested in Eswatini).
Nxumalo stated that the DPP clarified that this aspect is a trial-related consideration and will be dealt with at trial.
He mentioned that the DPP further stated that the respondents would have an opportunity to challenge and adduce evidence to the charges relating to the firearms should they be found to be extraditable.
“It is our humble submission that the respondents are not requested to be brought back to the Republic of South Africa on the basis that they were found in possession of firearms in Eswatini but the request is based on the fact that they are facing criminal charges, including the unlawful possession of firearms in the Republic of South Africa,” he said.
He said whether that is true or not, will be determined by the courts in the Republic of South Africa.
Nxumalo further drew the court’s attention to page 23 of the affidavit relating to the urgency of the matter.
He highlighted that the DPP in addressing the issue of urgency, stated that the matter was filed under a certificate of urgency in that the respondents in this matter are in custody and have a right to an expeditious hearing of the extradition enquiry.
“Secondly, the criminal cases related to the requests are already pending before South African Courts and will the delayed in their finalisation should the extradition enquiry of the respondents not be dealt with within a reasonable time,” he said.
He further stated that there is a real risk that the accused in the South African cases may argue that they are prejudiced by any delay caused by the extradition enquiry.
Nxumalo also stated that the cellular phones that have been seized in terms of Article 19 of the Treaty are also required as evidentiary material and further investigation into these devices must be undertaken.
“It is our humble application that this matter be treated with a sense of urgency.
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The matter has taken too long, yet there is no reasonable explanation as to why this matter has taken so long, let alone an application filed by the respondents, stating why they are opposing the extradition request” he said.
Nxumalo said that based on his submission, the applicant (Crown) approached the respondents’ legal representation on Monday morning highlighted the issue of urgency and made them aware that the application for the extradition is an issue of urgency.
He said during their consultation, both parties agreed that the matter should be set for arguments on June 14.
Nxumalo further stated that it was also agreed that the applicant would file its written submissions on May 20, 2024, subject to the direction of the court.
He mentioned that given that the respondents filed a notice of intention to oppose the extradition, meaning that the matter is opposed, they agreed that the respondents would file their head of arguments on May 27, 2024.
He said the matter will then come back to court on June 14 for arguments.
He, therefore, applied that the matter be postponed until June 14 for arguments.
Nxumalo said they further agreed with the respondents that the issue of further particulars would be addressed in the heads of arguments.
Sivesonkhe Ngwenya, the attorney representative of the respondents, confirmed that indeed they agreed with the applicants.
The matter was, therefore, postponed until June 14, 2024, for arguments.
