Mziwethemba Harvey Gwabeni during a bail application in the AKA-Tibz murder case at Durban Magistrate’s Court. Picture: Gallo Images/Darren Stewart
Two of the seven men charged with the murders of rapper Kiernan “AKA” Forbes and Tebello “Tibz” Motsoane will remain in custody after their second bail application was denied.
On Wednesday, the Durban Magistrate’s Court in KwaZulu-Natal (KZN) ruled against granting bail to Mziwethemba Harvey Gwabeni and Lindokuhle Ndimande.
The pair had submitted a second bid for bail, arguing that new facts had emerged since their initial applications.
Both men, along with their co-accused Lindokuhle Thabani Mkhwanazi, Lindani Ndimande, and Siyanda Myeza, were denied bail last May.
The suspects face multiple charges, including conspiracy to commit murder, two counts of murder, unlawful possession of firearms and ammunition, and five counts of attempted murder.
Additionally, Mkhwanazi, Ndimande, Myeza, and Gwabeni face money laundering charges.
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Two other suspects, Siyabonga Ndimande and Malusi Ndimande, remain in custody in eSwatini, awaiting extradition to South Africa.
This ongoing extradition process has added complexity to the case.
Forbes and Motsoane were killed outside the now-defunct restaurant Wish on Durban’s Florida Road on 10 February 2023.
The suspects were allegedly paid R800 000 for their role.
During proceedings, Magistrate Vincent Hlatshwayo described the second bail bids as an abuse of court processes, stating it was improper for an unsuccessful bail applicant to “repeat the same application for bail on the same set of works week in, week after”.
“The court may also not, in the absence of new facts justify granting of bail, set aside its own earlier decision of bail or refusal of bail in this regard,” Hlatshwayo said.
The presiding officer highlighted that bail was previously denied for Gwabeni due to his interference with a state witness.
“Applicant one will not hesitate to interfere with witnesses that implicate him as he has already done. It is, therefore, the finding of this court that, that likelihood is still there.
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“We are still dealing with the same person and on the evidence before me, there is nothing to suggest that applicant two is different or will act differently.”
Regarding extradition, the magistrate stated it did not affect the bail decision.
“The state committed itself to proceed with the matter with or without the two Ndimande brothers in eSwatini.
“It was the state’s commitment that in as much as proceeding with the matter without the two Ndimande brothers will come with the potential prejudice to the witnesses, who will have to testify twice about the same subject, it is the prejudice they can live with.”
Hlatshwayo emphasised the case had already been postponed to 7 February 2025 for indictments to be served and for transfer to a higher court.
“So this cannot be a new fact.”
In response to Gwabeni’s claim that his family was suffering financially and his children’s school fees were in arrears, the magistrate pointed out that the accused had committed to making payments before his incarceration.
He also mentioned the children’s mother, a qualified medical doctor, was capable of caring for them in his absence.
“Looking at the evidence in its totality, it is the finding of this court that this court cannot and should not assist the applicants because the facts presented are not new and they should not be entertained,” Hlatshwayo concluded.
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