Accused twins to hear Monday if arrest lawful

ANT KATZ

Going for the “unjust arrest” defence strategy was a significant tactical manoeuvre on the defence’s side as, should they have launched a bail hearing, legal pundits say they would have been less unlikely to succeed.

This is because, under the Terrorism Act, bail for awaiting trial prisoners is not a right, as is normal under SA law, and the onus would have been on the twins to prove exceptional circumstances existed to justify their bail.

Without the knowledge of the State’s evidence, it would have proven near impossible.

However, by following the plucky “unlawful arrest” defence, the accused twins could kill their chance of bail; if the arrest is deemed to have been lawful, it will largely kibosh any chance of bail, say legal experts.

SA’s seldom-tested Terrorism Act has not faced the scrutiny of a high-powered defence team, however, who may well find it’s veracity wanting.

This story is being watched closely by SA Jewry and communal organisations as, according to the National Prosecuting Authority’s (NPA) provisional charge sheet against the Thulsies, their intended targets included Jewish sites.

After the twins were arrested at their Johannesburg homes on July 9, Brigadier Hangwani Mulaudzi, senior spokesman for the SA Police’s Priority Crimes Division (the Hawks), told SAJR that a factor in the decision to arrest the brothers had been a list of potential targets that had been found at one of their homes. On the list were a “US diplomatic mission and Jewish institutions”. The listed sites have not been disclosed.

The Hawks initially said that the brothers, together with siblings, Ibrahim, 20, and Fatima, 24, Patel, were arrested. The Patels were charged with firearm contraventions and secured bail. They and the Thulsie twins had tried to go to Syria to join ISIS in April 2015. The Hawks’ statement did not mention that a fifth suspect (later identified as Ronaldo Smith) had been picked up as well.

 Smith (also known as Arashad Smith) had an ISIS flag as his social media profile picture and posts were read to the court in which Smith praised jihadists. He had agreed to turn state witness on July 9 and told Hawks officers of the Thulsies’ plot.

The Thulsies’ defence says Smith has since asked to recant his evidence, something that SA juris prudence does not allow for, NPA Gauteng Spokesman Phindi Louw told SAJR. The whereabouts and legal status of Smith are currently unknown, but he is presumed to be in witness protection for his own safety, as he requested on the day he spilled the beans.

Jewish Report then revealed a slew of hitherto unpublished facts about the Thulsie twins’ arrest – including evidence only revealed in court during tough cross-examination of the Hawks by defence attorney Annelene van den Heever, who is doggedly trying to prove the arrest had been illegal.

Van den Heever found a possible State Achilles hee; the prosecution was unwilling, or unable, to play their cards due to extraneous factors. A SAJR source close to the investigation, but who was only prepared to speak off the record, said multiple SA and foreign intelligence agencies refused to disclose information or evidence which could risk compromising relationships with, and other ongoing investigations with, foreign intelligence agencies from whence the tip-off emanated.

The source said that both the Hawks and NPA had admitted seeing certain crucial evidence, but “now do not have access or control of it”.  

And so began several days of spirited cross-examination of arresting officer and Hawks’ lead detective on the case W/O Wynand Olivier. Van den Heever implied that there was no evidence and called on the State to, in effect, put up or shut up – hoping that they would not comply.

Magistrate Du Plessis ordered the prosecutors to provide prima facie evidence to show that the arrests were legal – which was a game-changer. This transferred the burden of proof from the twins to the State having to prove it was not an unlawful arrest.

Van den Heever hammered the State for days but they did not offer more material evidence. Olivier would only say that Information from Smith and “items” found at the home of one of the twins, had led to their arrests.

African News Agency quoted Olivier as telling the court that he was “convinced that the twins were supporting ISIS from the evidence we obtained from (foreign) agencies”. The Hawks had been trying for some time to identify a South African using the name “Simba” whom foreign agencies said was building a bomb and had been looking for a trigger mechanism on the dark web. Smith identified Tony-Lee Thulsie as “Simba”.

Prosecutor Chris MacAdam argued that police had sufficient suspicion (from the foreign agencies, Smith and on raiding their homes) to immediately arrest the Thulsie twins. In fact, he argued, had police had not made the arrests, it would have been dereliction of duty in terms of the Terrorism Act.

In her closing arguments in the Johannesburg Magistrate’s Court, Van den Heever drove home some of the points she had emphasised in cross-examination, telling the court that:

• “You cannot arrest people on far-fetched allegations”;
• The twins’ right to be presumed innocent had been violated;
• The investigating officer could not explain what offence they allegedly committed by trying to cross the border into Mozambique, in an apparent bid to get to Turkey.
• Investigators had given multiple accounts of why the decision was made to arrest them;
• “It is abundantly clear [the Hawks] had nothing more than third- and fourth-hand information. I submit there was not one iota of factual information”; and
• Olivier conceded that a picture of the twins he had introduced as being that of them wearing vests with detonators and holding automatic rifles turned out to be paintball gear.

If Magistrate Du Plessis deems the arrests to have been unlawful, the twins will be free to leave court. Of course, the Hawks may be waiting for them outside the with another arrest warrant – but that remains to be seen.

The twins are being charged with three counts of contravening the Protection of Constitutional Democracy Against Terrorist and Related Activities Act.