By Sifiso Nhlabatsi | 2024-10-30

High Court THE Director of Public Prosecutions has filed an urgent application in the High Court against brothers, Siyabonga and Malusi Ndimande’s extradition appeal.

The two brothers are accused of having a hand in the murder of rapper Kiernan ‘AKA’ Forbes and his friend Tebello ‘Tibz’ Motsoane. The two had filed an appeal against Principal Magistrate David Khumalo's judgment to have them extradited back to South Africa to face murder charges.

The DPP argues that the accused's Notice of Appeal and Grounds of Appeal are invalid, as they were filed outside the 15 days set by Section 12 of the Extradition Act of 1968. The DPP’s office, represented by Principal Crown Counsel Macebo Nxumalo, filed a notice of motion yesterday before Judge Sabelo Masuku. In an affidavit made by the acting Director of Public Prosecutions, Lomvula Hlophe in terms of Section 12 of the Extradition Act, Act 13 of 1968 (the Act), the Ndimande brothers had 15 days to lodge an appeal, to the High Court, against the principal magistrate's order on the extradition.

“The 15 days from the time they received a copy of the written judgment expired on October 8,2024,” the acting DPP submitted. She pointed out that the reference to ‘days’ in the Extradition Act is a reference to calendar days and not court days. The acting DPP went on to state that the Ndimande brothers noted their appeal out of time on October 15, 2024. She said her office received the Notice of Appeal and Grounds of Appeal on October 15, 2024 at 1623 hours. This, according to the acting DPP was seven days late. She submitted that in extradition proceedings, the court sits, by virtue of Section 12 of the Extradition Act, as an appellate forum and not as a court of first instance. The right of appeal is always statutory according to the acting DPP. She disclosed that as an appellate court, the High Court can only exercise powers conferred upon it by statute. She submitted that the Extradition Act does not give the court power to condone the late filing of an appeal. “What is more both the High Court Act and the High Court Rules do not endow the High Court with power to condone late filing of appeals against orders of the Magistrates Court.

There is in law no appeal pending before this court. The Ndimande brothers’ purported appeal is void and of no force and effect,” Hlophe submitted. The acting DPP further stated that the Prime Minister Russell Mmiso Dlamini issued an order surrendering the Ndimande brothers to the Republic of South Africa in terms of Section 11 of the Extradition Act. She said the order for surrender was made lawfully prior to the accused filing their Notice of Appeal and Grounds of Appeal, which was ineffectual at any rate. She asserted that the Ndimande brothers’ failure to note an appeal timeously meant there was no limit on the execution of the prime minister's order. She said they must be surrendered to the Republic of South Africa. The purported appeal, according to the DPP’s office, is an entirely academic exercise.

The Ndimande brothers have to be in South Africa by November 22. This was disclosed by the DPP’s office in their application. According to the acting DPP, the application made yesterday is urgent because statutorily, where there is no appeal, as in the current case, the respondents have to be surrendered to the requesting State within 45 days from the date of the surrender order. The acting DPP further disclosed that extradition was founded on friendly relations and cooperation between States.

The court was told that if fugitives from justice in a country, where they were wanted for serious criminal cases were not surrendered by Eswatini because of delays in the execution of surrender orders; relations between Eswatini and the requesting State will be affected.

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