Big decision made in AKA and Tibz murder trial

Judge Nomfundo Sipunzi, residing in the Durban High Court, on Tuesday granted an application for separation of trial in the case regarding the the seven men accused of killing rapper Kiernan “AKA” Forbes and his friend Tebello “Tibz” Motsoane.

“The substance of this application implicates the right to fair trial, which shall be afforded to the accused individually as well as the state,” ruled Sipunzi.

Sipunzi said accused number three, Siyanda Eddie Myeza, will stand trial alone on counts 12 to 17.

The judge said she would explain her ruling later on.

“The reasons that underline this ruling shall be given when the full judgement of the court is delivered,” she said.

Six of the seven accused had argued that they did not want the trial to be separated.

The accused are Lindokuhle Mkhwanazi, who brought forward the application to separate the trial, Lindani Ndimane, Siyanda Myeza, Mziwethemba Gwabeni, Lindokuhle Ndimande, Malusi Ndimande, and Siyabonga Ndimande.

All seven have pleaded not guilty to the charges.

State Prosecutor Lawrence Gcwaba requested an order to refer Myeza back to the Magistrates Court.

Charges

Forbes and Motsoane were shot dead outside the Wish restaurant on Florida Road on 10 February 2023.

All seven accused pleaded not guilty when the trial began on Monday.

They face two counts of murder, attempted murder, conspiracy to commit murder and firearm and ammunition offences.

Myeza is the only accused who faces additional charges, relating to the May 2022 murder of Gift Khanyile in Mayville.

These include two counts of attempted murder, conspiracy to commit murder and vehicle theft.

The court heard that counts one to 11 affected all seven, while 12 to 17 applied to Myeza alone.

Sipunzi also ruled on Monday that the media may not broadcast witnesses’ evidence while they testify.

Legal team changes

Several legal teams changed. Advocate William Nicholson SC, who also serves as an acting judge, replaced Advocate Jimmy Howse SC for fourth accused Mziwethemba Gwabeni.

Advocate Muzi Mzelemu, who represented Lindokuhle Thabani Mkhwanazi, also took over from Advocate Paul Jorgensen for Lindani Ndimande. No reasons were given for the withdrawals of Howse and Jorgensen.

Former acting Director of Public Prosecutions Simphiwe Mlotshwa, who previously acted for Mkhwanazi alone, now also represents Myeza.

Advocate Gareth Leppan continues to act for Malusi Dave Ndimande and Siyabonga Gezani Ndimande.

Defence warned of prejudice and delays

Mlotshwa, representing Mkhwanazi, said keeping the matters together would drag out proceedings.

He described the state’s approach as “grossly unfair, irrational and unreasonable as it will unjustifiably prolong trial in this matter unnecessarily”.

The defence compared the case to the lengthy Senzo Meyiwa murder trial.

The application also raised the financial and personal toll of staying in custody while evidence on a separate matter was heard.

According to Mkhwanazi, the prejudice was clear.

He said it was “prejudice that I will suffer should this separation of trial’s application be declined by this honourable court”.

State said evidence overlapped

The state opposed the application. In an affidavit read by Gcaba, investigating officer Warrant Officer Kumarasan “Bob” Pillay of the Provincial Murder and Robbery Unit said all the accused were charged on the basis of common purpose and the joint possession of firearms and ammunition.

Pillay said the firearm linked to Myeza’s 2023 arrest was also used in the Forbes and Motsoane killings, which was why the charges were combined.

According to him, ballistic evidence and several witnesses overlapped.

He said the state intended to lead evidence that one of the firearms in the Mayville matter was “also relevant to the issues arising in the main trial”.

Pillay said separate trials would mean duplicated evidence, inconvenience for witnesses, higher costs and the risk of inconsistent findings by different courts.

He also said no one had objected to the consolidation earlier.

According to Gcaba, Myeza’s previous attorney, Mr Dlamini, agreed to combine the cases. Gcaba said that at the pre-trial stage, “All parties confirmed that they were trial ready”.

Pillay said he was caught off guard by the application.

“I was therefore surprised when during September 2026 I was informed by members of the prosecution team that they had been notified by Mr Dlamini of the intention to bring an application for separation of trials,” he said.

The defence disputed parts of the state’s position in a replying affidavit.

Defence applied incorrect law

Gcaba argued that the defence had applied for a separation of trial with the wrong law.

He argued that section 81 states that charges should be separated and leave the rest, while section 157 states that Myeza’s trial must be separated from the rest of the accused. “The trial that the accused is facing, he has pleaded not guilty on 17 counts. That is his trial before court, not one trial for counts one to 11 and another trial for 12-17,” Gcaba argued.

He added that “if you employ an order of separation in terms of section 157 it means you separate his trial from count one to 17 to be tried separately and that is not what they are applying. Therefore, the wrong law upon this application is made makes it for this court to dismiss it”.

Court questioned how the trial could be split

Mlotshwa also challenged how the consolidation was decided.

He argued that Mkhwanazi was not in court when it was agreed.

“Him not being in court, there is no confirmation on record,” he said. He added that the defence was “challenging the mechanism through which the decision to consolidate was reached”.

Mzelemu said refusing separation would cause prejudice and noted that the court could act on its own.

He said the court could order separation “if the court is of the view that there will be prejudice”.

Sipunzi said the court had no issue with its powers.

However, she noted that the state’s submissions were strongly based on the point that “the court may not separate half of the trial”.

She said that if the trial were separated, Myeza would have to be tried separately on all his charges.

Mzelemu disagreed. He said separation would not split the trial in half, but would mean Myeza was tried alone on his separate charges.

A month has been set aside for the trial, and further dates are expected to be set on 6 November 2026.