By Bahle Gama
Murder suspects Siyabonga and Malusi Ndimande want the High Court to dismiss an application by the Director of Public Prosecutions to have the suspects tended to within 45 days before extradition.
The DPP told the court that the application is urgent because statutorily, where there is no appeal, as in this case, the suspects must be surrendered to the requesting state (SA) within 45 days from the date of the surrender order.
She stated that extradition is founded on friendly relations and cooperation between states.
Suppose fugitives from justice in a country where they are wanted for serious criminal cases are not surrendered by Eswatini because of delays. In that case, relations between the two countries will be affected.
In an answering affidavit, Siyabonga told the court that the application by DPP Lomvula Hlophe is uncharacteristic in law, and instead purports to seek orders without any cause of action that justifies the orders sought.
“I pause to state that the DPP brings a completely wrong in-law application to bar our right to appeal before even being heard by the Court of Appeal.
Section 12 of the Extradition Act No. 13 of 1968 states that any person, including us in this matter, against whom an order has been made in terms of section 10, may within fifteen days after such issue appeal against such order to this Honourable Court,” he said.
The suspect further told the court that the application, therefore, is redolent with the idea that the DPP does not want to afford them an opportunity for a fair hearing of the appeal,
“even if it means violating the well-established central tenet of natural justice, the audi alteram partem principle.
Upon traversing this application, the inference becomes irresistible/inescapable that the applicant is motivated by malice.”
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According to the accused people, the DPP’s application has never been brought before, to dismiss an appeal before even filing the heads of arguments by the parties in terms of the prescribed Rules of the High Court.
“The common nomenclature refers to this phenomenon as putting the cart before the horse,” he said.
Regarding the Prime Minister’s issuance of a surrender order for the suspects under Section 11 of the Extradition Act on October 15, 2024, Siyabonga said the DPP’s averment is factually incorrect because their notice of appeal and grounds were filed on the same day.
“The applicant relies on the that the Prime Minister has issued a surrendering order which has not been served on us.
Otherwise, we only became aware of the existence of the order in this premature application. This further evidence the view that the applicant is clutching at straws to ensure that we are not allowed to be heard,” Siyabonga said.
He further stated that the DPP’s reasons are on very shaky grounds both legally and factually, on the basis she makes cardinal errors in the calculation of days, and further, confuses issues falling within the domain of the Appeal Court for determination or adjudication.
Siyabonga argues that the DPP considers the application as an urgent one, whereas this is not the case.
“Noteworthy in this matter is taking into cognizance that justice both in its formal/procedural and substantive/material justice forms must not all be done but must both manifestly and undoubtedly be seen to be done,” he said.
Elaborating further, the suspect alluded that on the procedural justice front, the DPP has failed to satisfy all the formalities prescribed in law.
On the substantive/material justice front, all the grounds of appeal encapsulated in the Notice of Appeal unequivocally demonstrate the existence of prospects of success on appeal, indubitably.
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“I however wish to take this Court into my full confidence and state that there is a strong legal view that the surrender order by the PM is reviewable in that if it was issued before the expiry of 15-day period ordained by the Extradition Act and confirmed by the Committal Court in in the judgment, that it justifies being taken on judicial review.
Accordingly, instruction has been given to the instructing attorneys in this matter to brief Counsel to draft the judicial review application papers with specific relief to review the surrender order and set it aside on the main legal basis that it is irregular,” he added.
The suspects believe that the master to succeed in having the matter heard as an urgent matter fails and therefore ought to be struck off the roll with punitive costs as the DPP’s conduct constitutes the abuse of Court processes.
