‘We want Human Rights Commission’s help’, AKA murder accused fight extradition

Brothers appeal court order to return to SA

Two men accused of killing mega star AKA will not be coming to SA any time soon after they filed an appeal against their extradition from Eswatini at the 11th hour.

The 14-day window period for them to file an appeal against their extradition order lapsed on Wednesday.

The application deadline effectively halts the extradition order until an appeal hearing is conducted.

In court papers filed on Tuesday in the high court of Eswatini, Siyabonga and Malusi Ndimande raised security concerns.

"...The second applicant [Malusi] unequivocally attributes the reason for fleeing the Republic of SA due to safety concerns as SA police even went to the Ndimande homestead to threaten matriarch to surrender the applicants as failure to do so will culminate in applicants being shot.

“Regarding the mandatory grounds for refusal to extradite, article 4(f) of Sadc protocol and extradition directs that the extradition shall be refused if the person whose extradition is requested has been, or would be, subjected in the requesting state to torture or cruel, or inhumane or degrading treatment or punishment...

The extradition was granted in August.

The brothers are accused of killing AKA, real name Kiernan Forbes, and his friend Tebello “Tibz” Motsoane outside a restaurant along Florida Road in Durban in February 2023.

The Ndimande brothers said there were “fundamental problems” with director of public prosecutions in KZN Adv Elaine Harrison's second additional affidavit.

Both parties [the applicant and respondents] in the extradition request proceedings were never called upon to make submission on feasibility and viability of enlisting the SA Human Rights Commission.

“Firstly, nowhere does it dispute or deny the serious allegation of safety as specifically raised by the applicants... At first blush, the inference becomes inescapable that the questions were not designed to address the real safety issue raised by the applicant.”

The duo also wants the enlisting of the South African Human Rights Commission (SAHRC) to work with law enforcement.

They said Harrison failed in both her affidavits to indicate if the SAHRC would be enlisted.

“Both parties [the applicant and respondents] in the extradition request proceedings were never called upon to make submission on feasibility and viability of enlisting the SA Human Rights Commission.

“Section 166 of the constitution of the Kingdom of Swaziland unequivocally states the commission shall be independent in the performance of its functions and shall not be subject to the direction or control of any person or authority.

“The SA Human Rights Commission itself as an independent chapter 9 institution ... was never subpoenaed by the committal court hearing the extradition request to give evidence under oath viva voce or depose to an affidavit on its willingness, readiness and preparedness to partner and collaborate with other law enforcement agents before making an order...”

They said there were prospects of success on appeal.

"...There was no case made for urgency in this extradition request and that the archaic basic tenet of justice is that justice must not only be done but must be undoubtedly and manifestly be seen to be done.”

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