The extradition case involving the murder suspects of South African rapper Kiernan ‘AKA’ Forbes; Siyabonga and Malusi Ndimande has taken a new turn, as the State has filed an application to present fresh evidence before the High Court.
The new development arises from an application lodged by acting Director of Public Prosecutions (DPP) Lomvula Hlophe, who is seeking the court’s permission to introduce additional material that allegedly confirms the validity of South Africa’s extradition request.
| Eswatini Observer WhatsApp Channel
Hlophe contends that the court must determine whether the extradition request submitted by South Africa was valid from the onset, before the hearing of the appeal. In her affidavit, the acting DPP warned that substantial prejudice may result if the court proceeds with the appeal without first addressing the validity of the request.
“It is envisaged that if the issue of the validity of the request is not dealt with by the requested State (Eswatini), then this poses the real risk that the appellants may raise the issue after their surrender to the requesting State (South Africa),” Hlophe submitted.
She said the omission could open the door to future litigation in South Africa, where the suspects could attempt to invalidate the request and evade prosecution.
To illustrate her concern, Hlophe cited the Cholota case in which the accused, despite a US court finding her extraditable, later challenged the validity of the South African request during trial and was acquitted.
RELATED: AKA Murder Trial Set for Next Year
According to Hlophe, the appellants who are currently detained at the Sidwashini Correctional Services facility would suffer no prejudice from the Crown’s application, as the point of law being raised could potentially benefit them by clarifying the legitimacy of the extradition request.
She disclosed that her application relied heavily on an affidavit from the DPP, KwaZulu-Natal (KZN), which provided the new evidence sought to be admitted on appeal. She added that she would also highlight key factors for the court to consider when assessing the Crown’s application to lead new evidence.
Appellants were unclear about validity issue – Crown
IN her supporting affidavit, the DPP KZN outlines the legal background surrounding the extradition request and references several landmark judgments.
These include Schultz v Minister of Justice and Correctional Services and S v Mokhesi and 17 others, which have shaped South Africa’s extradition procedures.
The DPP KZN emphasised that during the committal proceedings before the Manzini Magistrate’s Court, the validity of South Africa’s extradition request was never questioned by the accused.
“The appellants at no stage during the committal court proceedings raised the validity of the request,” she stated.
She added that even after the Schultz judgment was delivered on May 23, 2024, while proceedings in Eswatini were on-going, the appellants did not challenge the validity of the request.
According to the affidavit, the magistrate subsequently ruled on August 14, 2024 that the appellants were liable for surrender, followed by a full written judgment on September 23. Both decisions, according to the Crown, confirm that the validity of the request was never disputed under the Extradition Act, Extradition Agreement, or SADC Protocol.
Matters took a turn on June 3 when the Bloemfontein High Court upheld a special plea in the Cholota case, declaring South Africa’s extradition request to the United States invalid and unlawful for not complying with the Schultz judgment.
Following that ruling, the Ndimande brothers’ legal representative according to the Crown reportedly informed the media that he would assess the implications of the Cholota decision for his clients’ case.
Hlophe, in response, wrote to the defence lawyer seeking clarity on whether the appellants intended to raise the issue of validity in their appeal. However, she said the lawyer never replied. She stated that on August 22, the appellants filed their heads of argument for the appeal, but did not raise the question of validity. The Crown later filed its own heads on September 12, introducing a point in limine (a preliminary issue of law) concerning the legality of the extradition request.
“As at the signing of this affidavit the appellants have not responded to the point in limine regarding the validity of the request. It is therefore unclear whether they concede that the request was valid,” Hlophe stated.
The acting DPP said the Crown was compelled to bring this application in the interest of justice, ensuring that any extradition undertaken by Eswatini adhered to legal standards recognised in both countries.
The Crown is seeking an order granting permission to present further evidence on appeal under case Number 437/24 or alternatively, referring the matter to the committal court to hear the evidence.
Eswatini Observer Press Reader | View Here
