The five Durban North drug dealers who have been in jail since May for running a sophisticated dagga laboratory have been freed.
Travis Bailey, Tracey Anne Pretorius, her boyfriend Tyrone Hofland, Bonzile Chutshela and Senzele Dlezi were convicted of drug dealing in November 2011.
They were charged after a police raid at Pretorius’s Durban North home found 44kg of dagga, worth an estimated R2.2 million, was being cultivated in a laboratory in a concealed basement.
In a lengthy judgment, magistrate Najama Kathrada said the five had shown little or no remorse. Bailey, Hofland and Pretorius had been the “main offenders”, while Chutshela and Dlezi had been employed as workers.
She sentenced Bailey, Pretorius and Hofland to eight years in prison and Chutshela and Dlezi both got five.
On Friday, Pietermaritzburg High Court Judge Piet Koen set aside their jail terms and granted them bail after finding there had been a “gross irregularity” during their sentencing.
He granted Bailey, Pretorius and Hofland bail of R20 000 and Dlezi and Chutshela were given bail of R5 000 each.
Judge Koen did not interfere with the convictions but ordered the five be sent back to the Durban Magistrate’s Court for another magistrate to sentence them.
They are expected to appear in court this week.
Pretorius’s attorney, Anthony Irons, said that Judge Koen made the ruling after he dealt with a review application the five had brought to overturn the trial, as they claimed there had been “gross irregularities, severe bias and malice”.
Irons said Judge Koen found there had been a “perception of bias”.
He also said he was not sure when his clients would be released on bail as the court order would have to be served on prison authorities.
Bailey’s attorney, Jacques Botha, who was not in court but was informed of the outcome, said “justice can now prevail”.
Botha said when the matter went back to court for sentencing, it would probably be adjourned for probation officers’ reports.
In their initial sentencing, all five pleaded for non-custodial (non-prison) sentences with Bailey and Pretorius saying they were parents to young children.
The case has had an interesting history which has seen it being sent twice on review to the high court.
The basis of the current review application was that Kathrada had constantly interrupted their attorneys during the sentencing proceedings and had not allowed evidence in mitigation of sentence to be properly placed before the court.
They also accused her of having a “hostile and adverse stance” which tainted proceedings.
They also called into question a so-called “eavesdropping” transcript – which Kathrada requested – which she claimed was a recording of “appalling derogatory statements” made about her while she was not in court.
Kathrada sent the transcript to the local law society and society of advocates.
In the first review application, the five argued their advocate JP van der Veen had not represented them properly.
In response, Van der Veen made legal history by breaking lawyer-client confidentiality and disclosing that his former clients had confessed to him.
He said they had refused to plead guilty, and so he could only conduct their defence “on the basis of the interpretation of the definitions contained in the Drugs Act”.
Judge Gregory Kruger dismissed the application. The attorneys for the five also applied to Kathrada for her to recuse herself, claiming she was “angry with their clients”, but she refused the application.