AKA suspects attempt to bypass SAPS in extradition

The request by two brothers implicated in the AKA and Tibz murders to be handed over to SA prison authorities instead of SAPS during their extradition from Eswatini, will not fly. 

This is according to legal experts who say the exclusion of police in the extradition handover was not legally permissible. 

On Friday, Siyabonga Gezani Ndimande (Nxele) and Malusi Dave Ndimande (Mjay) were arrested by members of the Royal Eswatini Police Service (REPS) while hiding in a flat they rented at Zone 4 in Mbabane. 

According to a source, the Ndimande brothers met with their legal representatives where they stated that they do not want to be handed over to SAPS officials. Instead, the pair reportedly requested to be handed over to SA prison authorities because of their safety concerns. 

Prof Retselisitsoe Phooko, a law expert at the University of Fort Hare, said this was simply impossible as the process of investigating and apprehending any suspects starts with police officers. “The criminal justice system is a chain and the SA police are one of the key components. You cannot remove one component and expect the system to be effective,” he said. 

“From the moment they are handed over from the border, even if they are handed over to the department of correctional services officers, the oversight in terms of arrests still lies with SAPS. They [the suspects] will still have to go through SAPS to complete all the processes where they will be charged and their fingerprints taken.”

Phooke said while the responsibility would fall on the Ndimande brothers to prove their allegations around safety, their request was not legally possible. 

Prof Hennie Strydom from the University of Johannesburg said the brothers would have a difficult job proving  they would not be safe in the care of SAPS. 

Strydom said only reliable evidence supporting their claim would force the SA government to consider their request, but for SAPS to be excluded from the handover is a request that just would not “fly”. 

“If there is any reliable evidence supporting that claim, it is for the SA government to make alternative arrangements. But it will not fly for them to try and exclude SAPS.

“I also doubt that they will provide reliable evidence in order to back up their claim in such a wide and unspecific way. If they cannot prove these claims, they will be transferred once the extradition proceeding have been concluded and handed over to the police who will then detain them pending their first appearance in court," said Strydom.

Strydom said the SA government may try to find other alternatives, but those would probably not exclude SAPS. 

“It will depend on whether their fear is about a specific component of the police, for example the very member who effected the arrest, then a completely different unit can be assigned. But such a vague claim, it won't fly.”

Attorney Nthabiseng Dubazana said South African law dictates that once a warrant of arrest is issued, the SAPS officials are the ones to execute the arrest. 

“If the Eswatini courts are satisfied that it is within the best interests that the accused persons be returned to the country, then the accused persons have no say as to who can receive them. There is nothing in the act that says only people from a certain branch from the department of justice can recieve them,” she said. 

She further added that DCS officials have no say in how the accused persons are brought into the country.

“All they do is deal with the facilities wherein the accused person will be detained. So the accused people cannot make such a request and so they have to accept what is coming their way.” 

– Additional reporting by Times of Eswatini