MORE DELAYS IN ‘AKA’ MURDER SUSPECTS’ EXTRADITION

MBABANE – The alleged killers of South African rapper Kiernan ‘AKA’ Forbes have applied for an extension of the time within which to file their opposing affidavits.

Siyabonga Gezani Ndimande and Malusi Dave Ndimande are seeking the extension pending their being furnished with the further particulars they requested from the Crown. In their notice of application, which they filed at the Manzini Magistrates Court, the pair say they want to be granted the extension of the filing time as provided for by the Rules of the High Court of Eswatini. They submitted that the court should extend the filing period to within a time it deems appropriate.

Requested

They requested the magistrates court to take into account that they have two defence teams; one in Eswatini and the other in the Republic of South Africa. They argued that both teams had not had the opportunity to meet as they could not, currently, finance their travel arrangements. Consequently, they submitted, the Eswatini legal team, despite being briefed by them, and in the absence of the requested further particulars, and that may disturb the angle which their South African legal team may adopt in their defence.

“We request the above honourable court to take note of the fact that at the Correctional centre (where we are kept), the telephones (and cellphones not being allowed thereat) to which we have access do not allow for international calls,  hence we cannot financially instruct our legal team as we are dependent on our family in South Africa. “Clearly, the interest of justice favours that we be afforded the extension of time as provided for in Rule 27 of the Rules of the High Court,” they submitted in their notice of application.

They further told the court that they were amazed as to why the Crown would be prejudiced by providing them with the requisite documents ‘because we require them to make up our minds as to whether or not we will object to the Crown’s application’. “No matter how much the applicant may argue that these are not criminal proceedings stricto sensu, we submit that it cannot be divorced from criminal proceedings.”

The applicants argued that in actual fact, when one followed their line of argument, their right to administrative justice is enshrined in the Eswatini Constitution, which states that: “Any person appearing before any administrative authority has a right to be heard and to be treated justly and fairly in accordance with the requirements imposed by law, including the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision against the person with which that person is aggrieved.” The duo informed the court that contrary to what was being argued by the Crown, they were not asking that the Crown divulge the names of its witnesses and their addresses.

The only issue they were seeking, they submitted, was that they must provide them with sufficient facts so as to enable them to make an informed decision and properly instruct their legal team, both in Eswatini and in the Republic of South Africa. On the question of urgency, the applicants stated that they were requesting the court to take judicial notice of the fact that extradition matters do take almost close to about seven years to be concluded. They said they were having difficulty in understanding why their matter should be dealt with differently.

“One may argue that we are being discriminated as such matters are the same and there is no special case as all matters are important. “The applicant has not demonstrated what prejudice it would suffer if they provide us with the further particulars which we requested. “It should be noted that Rule 27 of the Rules of the High Court of Eswatini is clear that an extension of time or taking any step with a matter pertains to any proceedings of any nature.” Siyabonga and Malusi are represented by Sivesonkhe Ngwenya of Sivesonkhe Ngwenya and Associates.

Prosecution

The duo caused to be issued a correspondence directed to the prosecution wherein they are demanding further particulars. Further particulars refer to additional information required to provide sufficient accuracy with respect to a set of pleaded facts in an earlier document. They contended that they would not be in a position to file their papers in the extradition application without being provided with the full docket of investigations that were carried out by the South African Police Service (SAPS).  

They said the copy of the extradition application that was provided to them by the prosecution did not have sufficient information to assist them file their responding papers. They made the request for further particulars in terms of Rule 21 of the High Court Rules.  Rule 21 provides that the court may order a party to deliver to any other party further particulars of any claim, or other matter stated in the pleadings. In their correspondence, they stated that in the absence of the details they were seeking, they would not be in a position to file their papers or make a proper decision whether to oppose the application for extradition or not. The matter is pending in court.

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