MBABANE – The DPP has moved swiftly to avert a situation that may lead to the Ndimande brothers evading prosecution in the Republic of South Africa.
The director of public prosecutions (DPP) has approached the High Court of Eswatini, sitting as an appeal court, with an application to present further evidence in the extradition appeal filed by Siyabonga Gezani Ndimande and Malusi Dave Ndimande.
The two South African nationals are currently detained at Sidwashini Correctional Services facility. They are appealing the judgment of Manzini Principal Magistrate David Khumalo, who ordered that they be extradited to their home country to face their criminal charges.
They are accused of the murder of popular South African rapper Kiernan AKA Forbes and his friend Tebello ‘Tibz’ Motsoane in Durban on February 10, 2023.
The Ndimande brothers challenged the validity of the request for their provisional arrest in Eswatini, in the form of a point of law. This point of law, if not addressed, according to the Crown, might lead to the accused duo evading prosecution if they raised it during their trial, after their extradition.
The supporting affidavit deposed to by the Acting Director of Public Prosecutions, Lomvula Hlophe, cites a similar case in the United States, where the same point was raised during a trial, after extradition, having not been addressed in the requested country and the accused was acquitted.
In the case of the Ndimande brothers, the Crown’s application is based on the point of law regarding the validity of the original extradition request from the Republic of South Africa.
The Crown contends that substantial prejudice will result if the appeal court does not deal with the validity of the request.
“Failure to address this issue by the requested State poses a risk that the appellants may raise the issue in the requesting State (South Africa) after surrender to evade criminal prosecution, as evidenced in the Cholota matter in the United States.
“Conversely, the appellants would not suffer prejudice, as the point of law being raised concerning the request’s validity may potentially benefit them,” states the filed papers. The veracity of these allegations is still to be tested by the court. The pair is yet to file their answering papers.
The application relies on an affidavit received from the DPP KwaZulu-Natal, which details new evidence available to show the request’s validity.
The new evidence being sought to be introduced by the Eswatini DPP, via the DPP KZN’s affidavit, includes:
1. Internal memorandum: A routing memorandum titled ‘Request for Extradition by South Africa to Kingdom of Eswatini: Siyabonga Gezani Ndimande and Malusi Dave Ndimande’ prepared by the Department of Justice and Constitutional Development, South Africa. The memorandum was facilitated by the chief director to the former Minister Lamola, who allegedly signed the memorandum on March 15, 2024, prior to the committal court proceedings.
2. Ministerial confirmation and media release: Transcripts of SABC News interviews conducted on March 19, 2024, where Minister Lamola allegedly confirmed that a request for the extradition of the appellants had been made in compliance with the Extradition Act, Act 67 of 1962.
The Eswatini DPP affirms that these documents—the original internal memorandum, the transcripts and the media statements—have been transmitted via diplomatic channels and are in the Crown’s possession, ready to be presented if leave is granted.
The DPP KZN’s affidavit asserts that the evidence, including the internal memorandum, interviews and media statement, was available between March 13 and 19, 2024. Hlophe submitted that the evidence, therefore, could not have been adapted in any manner to suit the current proceedings.
The documents, according to Hlophe, are asserted to be in a reliable and admissible form, with the transcripts bearing a transcribers’ certificate and the note verbale already forming part of the appeal record. The evidence is presented as having a high probative value submitted Hlophe.
The acting DPP informed the court that the evidence is deemed relevant because it is aimed at showing that Minister Lamola approved the extradition of the Ndimande brothers and submitted the request on behalf of the Republic of South Africa to the Kingdom of Eswatini, which would allow the court to determine whether the request is valid and enforceable in light of the South African legal developments.
Additionally, the Eswatini DPP highlighted that the note verbale issued by the South African High Commission validates the request in terms of Section 6 of the Eswatini Extradition Act, as the High Commissioner is a recognised diplomatic representative. The DPP also argues that referring the matter back to the committal court would cause unreasonable delay. The matter is pending in court.
Meanwhile, the extradition process began on February 22, 2024, when the DPP KwaZulu-Natal (DPP KZN) signed requests for the provisional arrest of the appellants, which were subsequently executed in Eswatini. This led to their arrest on February 24, 2024.
They made their initial appearance in the Manzini Magistrates Court on February 26, 2024. The DPP KZN deposed to an affidavit supporting the formal request for extradition on March 5, 2024, which was submitted to Eswatini via diplomatic channels.
The committal court proceedings saw the request handed in as an exhibit on March 20, 2024.
Despite several interlocutory applications launched by the accused, the principal magistrate found on August 14, 2024, that they were liable to be surrendered.
The court’s full written judgment was handed down on September 23, 2024.
Following a dispute over the service date of the full judgment, the appellants (accused brothers) filed their notice of appeal and grounds of appeal on October 15, 2024, at 4:23pm, just hours after the surrender order was issued by the prime minister of Eswatini at noon on the same day.
This led the Crown to file a ‘nullity application’, arguing that the appeal documents were filed out of time, which the High Court dismissed on November 29, 2024.
It found the appeal to have been filed within the prescribed 15 days, in accordance with Section 12 of the Extradition Act of Eswatini.
The High Court stayed the execution of the surrender order pending the outcome of the appeal. The matter was later referred back to the High Court for the appeal to be heard, following a consent order obtained in the Supreme Court on May 8, 2025.
Siyabonga Gezani Ndimande (Nxele) and Malusi Dave Ndimande (Mjay), who were arrested in the country in connection with the murder of Kiernan Forbes, popularly known as ‘AKA’ and his friend Tebello ‘Tibz’ Motsoane. (Pic: File)