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STATE: 4 CELLPHONES SUSPECTED TO BE LINKED TO ‘AKA’ MURDER

06/03/2024 08:42:00 Mbongiseni Ndzimandze

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MANZINI – The two Ndimande brothers, who were arrested in the country in connection with the murder of Kiernan Forbes popularly known as ‘AKA’, were found with four cellphones, purportedly used in the commission of the offences they are wanted for in their home country.

The duo of Siyabonga Gezani Ndimande (Nxele) and Malusi Dave Ndimande (Mjay) were found in possession of the gadgets when they were arrested by members of the Royal Eswatini Police Service (REPS), while hiding in a flat they were renting at Zone 4 in Mbabane. In South Africa, they are wanted to answer on charges of conspiracy to commit murder, contravention of the Prevention of Organised Crime Act 21 of 1998, unlawful possession of firearms, ammunition and money laundering.

Seize

When the accused made their second court appearance at the Manzini Magistrates Court yesterday, Principal Crown Counsel Macebo Nxumalo moved an application to seize and detain the four cellphones, a black Nokia, grey Samsung, Vivo and a navy blue Huawei. “We apply for detention of the cellphones that were found in their possession as per the provisional request, that whatever is found in the possession of the accused persons, either cellphones or firearms or anything that will be relevant to the case, should be seized and detained. So, during the arrest of the two accused persons, four cellphones were found in their possession,” submitted Nxumalo. In the application for the provisional arrest of the two, the Director of Public Prosecutions for KwaZulu-Natal Division of the High Court, Elaine Harrison, had highlighted that various matters had revealed that the Ndimande brothers might, upon their arrest, be in possession of cellphones, laptops and other electronic devices, that might have been used in the commission of the offences.

Nxumalo applied for the markings as per the labels on the seal bags containing the cellphones, which were then marked: SWAG 025798, SWAG 025797, SWAG 025799 and SWAG 0257800. The application was made in terms of Section 52 (1) of the Criminal Procedure and Evidence Act No.67 of 1938 as amended, which provides that: “If on the arrest of any person on a charge of an offence relating to property, the property in respect of which the offence is alleged to have been committed is found in his possession, or if anything is seized or taken under this Act, the person making the arrest or (as the case may be) the person seizing or taking the thing shall deliver such property or thing, or cause it to be delivered to a magistrate, within such time as in all the circumstances of the case is reasonable.

“On March 12, 2024, we will apply for the release of the cellphones to the South African police, as the extradition law allows the handing over of any property found in the possession of the accused persons even before the extradition process is finalised,” submitted Nxumalo. The detention application was, however, met with resistance from the lawyer representing the Ndimande brothers, Sivesenkhosi Ngwenya. Ngwenya entreated the court not to grant the order for the seizure and detention of the gadgets, as they needed time to peruse the application motivating same.

Detention

He told the court that the main reason they were opposed to the application for the detention of the exhibits (cellphones), was that it (prosecution) did not have an affidavit authenticating its application. Ngwenya averred that the prosecution made an ambush by only furnishing the court with the application without having served him or his clients. “My Lord, there is no prejudice to be suffered by the prosecution in the event the order for the detention of the cellphones is not issued by the court, as the gadgets are in the custody of the police,” he submitted. He told the court that they would not take a risk and allow the granting of the order before having had sight of the application for detention of the cellphones. “I need time to go through the application for the detention of the cellphones and it will be after, that I will take full instructions from my clients,” contended Ngwenya.

After having heard submissions from both parties, Principal Magistrate David Khumalo ruled that there was no prejudice to be suffered by the prosecution in the event the order was not issued yesterday. He then deferred the hearing of the detention application to March 12, 2024. In the application for detention of the exhibits, Detective Bhekani Simelane submitted that during their arrest, the Ndimande brothers were cautioned as the judge’s rules and served with the application for their provisional arrest. He highlighted that in the application, the prosecution of the neighbouring country stated that, the accused persons might, upon their arrest, be in possession of cellphones, laptops and other electronic devices that might had been used in the commission of the offences.

“Upon arrest, they were in possession of cellphones and we omitted to seize them, therefore, we request the court to grant permission to seize their cellphone and detain them,” submitted the law enforcer. Simelane stated that, once seized, the exhibits would be packaged in seal bags in the presence of the accused persons to formalise the procedure for chain of custody of an exhibit until it was handed over to the officials from the Republic of South Africa. The accused will make their third court appearance on March 12, 2024.