DM168 DEEP DIVE: Terrorism Act: Thulsie Twins still awaiting trial after five years in jail

5 months ago 28

Brandon-Lee Thulsie and Tony-Lee Thulsie. (Photo: Facebook)

Brandon-Lee and Tony-Lee Thulsie, who were arrested and charged with planning attacks on embassies, mosques and a cartoonist, have been awaiting trial for five years. Now they’re fighting about the delays.

First published in the Daily Maverick 168 weekly newspaper.

On 9 July, the “Thulsie Twins” will have been in jail for five years, yet the start of their trial still does not seem to be imminent. Brandon-Lee and Tony-Lee Thulsie were just 23 when they were arrested in Newclare and Florida, Johannesburg, respectively, on 9 July 2016.

They were later charged with twice trying to leave South Africa to join the Islamic State in Syria and then for planning terrorist attacks in South Africa, against the UK, US, Russian and French embassies, various Jewish interests, shi’a mosques, the state-owned arms manufacturer Denel and cartoonist Jonathan Shapiro – Zapiro – for drawing cartoons of the prophet Mohamed.

The two Thulsies were indicted under the hitherto untested 2005 Protection of Constitutional Democracy against Terrorist and Related Activities Act (Pocdatara) – the “Terrorism Act”, in shorthand – and face possible life imprisonment if convicted.

On 11 May, they marked their 28th birthday in Kgosi Mampuru II Correctional Facility, Pretoria. They had committed the first of their alleged crimes in April 2015, when they were still 21, barely adults.

After five years behind bars, they still seem to be no closer to the start of their trial, let alone the finish.

Their case has been marked by many delays, most of which the state and the Thulsies defence teams blame on each other, though the Covid-19 pandemic lockdowns also paused proceedings for much of 2020.

In their affidavit seeking bail for the second time last year, the Thulsies listed the milestones of their legal journey to date, including their first bail application on 26 July 2016, which they abandoned on 16 October 2016; their challenge of the lawfulness of their arrests – without warrants – which a magistrate ruled as lawful on 15 August 2016; their requests to transfer the case from the Johannesburg Regional Court to the High Court in Johannesburg, which happened on 31 August 2017; as well as a series of other requests to the state for further particulars of the evidence against them, which were still under way then.

“As a result of the aforesaid, it is abundantly clear that the commencement date of this trial is uncertain,” the Thulsies added.

In his affidavit opposing the Thulsies’ bail application, the investigating officer, Warrant Office Wynand Olivier, presented a longer timeline of court hearings in the case to date, to dispute what he said was the defence’s contention that the delays in bringing the case to trial were the fault of the state.

He catalogued several causes of delay that came from the defence’s side, including: the two bail applications; challenges to the lawfulness of the arrests; challenges to the lawfulness of the original searches of their properties; requests for postponements so they could demand more disclosure of evidence by the state; requests for access to state witnesses; challenges against the constitutionality of the Terrorism Act; requests for postponements to allow the defence more time to consider all the evidence; and finally an application for the case to be returned from the Johannesburg High Court to the Johannesburg Regional Court, where it began in 2016.

Underlining his point about delay, Olivier noted the defence had in February 2018 sought postponements of the case to consult state witnesses, to seek more state evidence and to challenge the constitutionality of the terrorism legislation – and had then later withdrawn these applications.

Olivier contended “there was no unreasonable delay from the state in any of the postponements”.

Some delays were caused by the state, though it argued they were necessary. These included postponements for further investigation and requests for postponements specifically to await responses from foreign countries (specifically the UK and Kenya) to the prosecution’s request for Mutual Legal Assistance.

Detention on remand (that is, awaiting trial) for as long as the Thulsies have been incarcerated inevitably creates unease among advocates for the rights of detainees and often creates a presumption of abuse by the state.

But that was not the high court’s opinion, at least not in October last year. After abandoning their first bail application following their arrests in 2016, the Thulsies launched a fresh application.

On 1 October 2020, High Court Judge Ramarumo Monama dismissed this application.

He said they had failed to prove that the necessary exceptional circumstances existed to justify bail and agreed with the prosecution that it had a strong case against the Thulsies. Monama said the Thulsies had not challenged the evidence against them – including the prosecution’s claim that good grounds existed to suspect that if released they might flee to Mozambique to join an alleged accomplice, Renaldo Smith, who had become an Islamic State insurgent in Cabo Delgado, the state said.

The judge also said the Thulsies themselves had occasioned many of the delays in the trial and so could not rely on the delays as a reason for getting bail.

He did, however, say he hoped that the case would be expedited. That has not happened. There have been more delays and the case remains bogged down.

The Bill of Rights only requires that a trial must commence without unreasonable delay but does not define what ‘unreasonable’ is. This is left to the particular court to monitor and take corrective measures.

In November and December, the Thulsies were prevented from consulting with their lawyers to prepare for the trial, which was scheduled to start in January.

“We were forced to launch an urgent application, and although the state opposed the application, our clients succeeded and secured a costs order against the state,” the Thulsies’ attorney, Nadeem Mahomed, told DM168.

It was the Department of Correctional Services and not the NPA that was preventing the Thulsies from meeting their lawyers and this was because of Covid-19 physical distancing rules, the state said.

Mahomed also complained that, despite the prosecution asserting that it was ready for trial at the end of 2020, in early 2021 “the state made further disclosure of the docket”.

The state replied that it was entitled to disclose documents at any time before the Thulsies pleaded, which they haven’t yet. The defence had suffered no prejudice because the case had been set down for six months ahead, so there is still time for the defence to respond.

The latest delay to the start of the trial began when the Thulsies’ defence team gave the state notice on 17 January – the day before the trial was eventually to commence – that it intended to argue that the case should never have been transferred from the Johannesburg Regional Court to the high court in 2016.

The defence said that if the case was not thrown out of court it should be referred back to the regional court.

The Thulsies’ lawyers cited the precedent of a 2018 judgment by the Free State High Court upholding the application by Eddie Sithole and others to refer their racketeering trial from the high court back to the Welkom Magistrates’ Court.

State prosecutor Adele Barnard opposed the Thulsies’ application, arguing that the Free State case was not a precedent at all. She said that Sithole and his co-defendants had been charged with racketeering and the Free State High Court had based its judgment on the fact that the regional court had the same jurisdiction as the high court as to sentencing and the case was not complex enough to require a hearing in the high court. By contrast, she argued, the charges in the Thulsie case were far more serious, with international implications and the sentences were potentially greater in the high court than the regional court.

The prosecution also argued that the Thulsies’ case had been transferred to the high court in October 2017 and the defence had never objected to that before. So why now?

On 4 February, Johannesburg High Court trial Judge Ratha Mokgoatlheng dismissed the application by the defence to have the case thrown out or transferred to the regional court. The next day he also denied them leave to appeal the case, saying he did not believe another judge would rule differently.

But the Thulsie lawyers are sticking to their guns and are now trying to petition the Supreme Court of Appeal (SCA) directly.

Mahomed told DM168 he believed the SCA would grant the Thulsies’ leave to appeal Mokgoatlheng’s judgment “because the prevailing law is that where conflicting judgments exist, it is a basis for leave to appeal to be granted”.

This has prompted a whole new spate of litigation to determine whether Mokgoatlheng’s refusal to return the case to the Johannesburg Regional Court is “appealable”. The prosecution contends that only judgments and sentences may be appealed.

The next deadline in this protracted saga is 20 July, when the defence lawyers must present their petition to the SCA.

Meanwhile, the judge also ruled that neither side may lodge any further applications, including for bail, until their petition to the SCA had been finalised.

The prosecution has charged that the attempt to return the case to the regional court is just “forum shopping” or delaying tactics and the case has generally become very acrimonious, with the defence accusing the prosecution of “Islamophobia” and of using apartheid-era tactics. The state retorts that it is merely following the letter of the law.

Though the long delay in getting the Thulsies case to trial is causing concern, it is not unprecedented.

Professor Lukas Muntingh, head of the Africa Criminal Justice Reform (ACJR) programme at the Dullah Omar Institute of the University of the Western Cape, notes that the Boeremag trial took something like 10 years to complete and that the delay was largely blamed on the accused. So precedent is not in the Thulsies’ favour.

And he points out that, unlike many other countries, South Africa does not have a time limit on when a trial should commence and be completed.

“The Bill of Rights only requires that a trial must commence without unreasonable delay but does not define what ‘unreasonable’ is. This is left to the particular court to monitor and take corrective measures.”

That should happen through Section 342(a) of the Criminal Procedure Act, which requires courts to investigate delays in trials which they deem unreasonable “and which could cause substantial prejudice to the prosecution, the accused or his or her legal adviser, the state or a witness”.

Muntingh told DM168 he was not familiar with the details of the Thulsie case. “But one may well ask if a Section 342(a) investigation has been done and whether there has indeed been a formal finding that it is the accused who are responsible for the delays. After all, by October last year they had been in custody for more than four years.”

As it happens, a Section 342(a) investigation of the delay in the Thulsies’ trial has been called for – but, ironically perhaps, it was called for by the prosecution, because it says the delays have been caused by the defence and they are prejudicing the prosecution of the case.

Muntingh notes that, if the courts deny a bail application, South Africa’s bail legislation will only allow a later application if there is new evidence to consider.

Yet he observes that the European Court of Human Rights has found in a number of cases that the longer a suspect remains in custody, the more onerous the obligation becomes on the state to motivate for continued detention.

“In short, the state cannot continue to justify extended detention merely because it is a serious charge. The state needs to show what steps it is taking to commence with the trial (e.g. collecting specific evidence, or that such evidence needs to be protected from the accused etc). One could therefore argue that the length of detention becomes new evidence over time and would thus warrant an application afresh.”

Perhaps these will be among the questions the Johannesburg High Court will consider if it does conduct a Section 342(a) investigation of the five-year delay – so far – in bringing Brandon-Lee and Tony-Lee Thulsie to trial.

That investigation may only be heard once the defence’s petition to the SCA has been finalised, which will probably take months.

And so, those close to the case say, the trial of the Thulsie Twins is unlikely to start this year. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for free to Pick n Pay Smart Shoppers at these Pick n Pay stores.

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