Thulsie ‘terror’ twins lose bid to have their case thrown out of court

The South Gauteng High Court has shot down a last-minute bid by the terror-accused Thulsie twins to have their case thrown out.

Last week – as their long-anticipated trial was finally about to kick off – the Thulsies launched an application to have their case struck from the roll, due to what their legal team described as an “irregularity” in the way it had been transferred from the regional court to the high court.

But Judge Ratha Mokgoathleng – who is presiding over the case – on Thursday dismissed the application.

Even if there had been an irregularity – which Mokgoathleng found there had not – he said it would not be in the interests of justice to strike the matter from the roll at this stage.

“The interests of justice and the administration of justice – could it be said that they had been so transgressed that a court should make a declaration that all the proceeding are a nullity?” he asked. “It could never be so.”

Police swooped on Tony-Lee and Brandon-Lee Thulsie during raids in Newclare and Azaadville, on the Johannesburg’s West Rand, in July 2016 – after one of the brothers had allegedly disclosed plans to carry out terror attacks in South Africa to an undercover Federal Bureau of Investigation (FBI) agent from the US.

The Thulsie twins at the Johannesburg High Court on 27 January 2021. They are facing charges of terrorism and have been in custody since they were arrested in July 2016. Picture: Neil McCartney

Their alleged targets included the US embassy, the UK High Commission, the South Africa Zionist Federation, King David High School, and arms manufacturer Denel.

The Thulsies’ advocate, Abu Bakr Omar, had last week taken the line that a case only qualified to be transferred if the court it was first enrolled in did not have jurisdiction to try it. And, he had argued, this had not been the case in these circumstances, because the regional court, too, had the jurisdiction to try terrorism cases.

Further, he had advanced, the decision itself should have been made by the regional magistrate who was initially allocated the case but it was in fact made by the director of public prosecutions (DPP).

But state advocate Adele Barnard had retorted that it was late in the game to be raising the issue and that the state – which she was adamant had the ultimate discretion to decide where it wanted to run its trials – had applied to transfer the case in question because if they were convicted, it was planning on seeking life imprisonment for the Thulsies.

Mokgoathleng agreed with her. He highlighted that during the course of the high court proceedings, the accused had appeared before multiple judges.

“And during their appearance in this court, they were at all times represented by counsel,” he added.

“What is critical is that at no stage during those appearances by the accused was there ever an objection raised to the effect that the transfer of the case had been irregular,” the judge said.

The judge also described the DPP’s powers to run trials as “unfettered”.

“A magistrate cannot, of his own accord, transfer a case from the regional court to the high court. It is the DPP who does that. The magistrate plays no part in that,” he said.

The Thulsies are expected to bring an application for leave to appeal the judgment on Friday.

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