Why Eswatini won't extradite AKA and Tibz murder suspects

The Eswatini-based brothers accused of killing rapper Kiernan “AKA” Forbes and chef Tebello “Tibz” Motsoane will be able to appeal the order for them to be extradited to South Africa to face the murder charges.

Siyabonga and Malusi Ndimande had appealed the Manzini magistrate’s court extradition order which was granted in July after an application by the SA government for the brothers to face a multitude of crimes.

The two were sought by SA in relation to three cases in KwaZulu-Natal, including the murders of Forbes and Motsoane, on charges of conspiracy to commit murder, murder, unlawful possession of automatic firearms and ammunition, and money laundering.

But in a “unique application”, the Eswatini director of public prosecutions (DPP) approached the Eswatini High Court for an urgent motion to halt the appeal, on the grounds that it exceeded the 15-day grace period for an appeal application to be lodged.

The matter was heard on Friday, delaying proceedings at the Durban magistrate's court where the murder case was set to be heard.

The DPP had requested the court to order that the appeal application by the Ndimande brothers was submitted late as set out in the Extradition Act. This after the magistrate court ruled that the brothers had a right to appeal against the judgment in line with the act.

In their response to the DPP's application, the brothers said they received the judgment on September 24 and filed their appeal application on October 15, the 15th day since receiving the judgment.  However, the DPP said they received the judgment the day before, on September 23.

Eswatini High Court judge SM Masuku said there were different versions on the date of receipt of the judgment, but it must be accepted that the court specified that the 15 days must be counted from the date of receipt of the judgment.

“The appeal was made within the time stipulated by section 12 of the act, an appeal is pending before the high court and the period of appeal must be left to run and no surrender of the [brothers] shall be executed before the disposal of the appeal,” he said.

“The appeal is dismissed. The [brothers’] notice of appeal and grounds of appeal were filed and served within the period of 15 days ... No surrender of the [brothers] shall be executed before the disposal of the appeal.”

Masuku said the surrender order, which was issued by the prime minister on the same day the brothers submitted their notice to appeal, will be postponed pending the outcome of the appeal.

“Pending all the above processes, the [brothers] shall remain detained and waiting at the correctional services in Sidvwashini.” 

Back at the Durban magistrate's court, magistrate Vincent Hlatshwayo postponed the matter for the last time to February 7 next year.

“I cannot entertain further postponements for outstanding suspects because like the defence indicated, this appeal may go as far as the Supreme Court,” he said.

Meanwhile, Lindokuhle Thabani Mkhwanazi, 30, Lindani Zenzele Ndimande, 35, Siyanda Eddie Myeza, 21, Mziwethemba Harvey Gwabeni, 36, and Lindokuhle Mhlaliseni Ndimande, 29, were denied bail after being arrested in February for being linked to the murders.

The five face additional charges of money laundering, conspiracy to commit murder, unlawful possession of a firearm, unlawful possession of ammunition and five counts of attempted murder.

Additional reporting by Mfundo Mkhize