Durban - It was a gamble that did not pay off for Durban North mother Tracey Anne Pretorius, a convicted drug dealer, and two of her co-accused on Thursday when, after claiming a “biased” magistrate had unfairly jailed them for eight years, another magistrate raised their sentences to 10 years.
Pretorius, her boyfriend Tyrone Hofland and Travis Bailey stood in stunned silence in the dock while friends and relatives wept silently in the public gallery as acting Durban magistrate Logan Perumal rejected their pleas to be placed under correctional supervision.
Pretorius, in particular, had spoken of the impact the case had had on her two children, saying she was their primary caregiver.
But the magistrate pointed out that all the accused had children or played a significant role in the lives of children yet they had chosen to commit a serious crime in dealing in drugs, “which has devastating effects, especially on young people”.
Pretorius, Hofland, Bailey and Bonzile Chutshela and Senzele Dlezi were convicted of drug dealing by magistrate Najama Kathrada in November 2011 following a police raid at Pretorius’s Durban North home, where 44kg of dagga, worth R2.2million, was being cultivated in a sophisticated laboratory concealed in the basement.
Kathrada said all five had shown little or no remorse. Bailey, Hofland and Pretorius were the “main offenders” and were sentenced to eight years in jail while Chutshela and Dlezi, who had been employed as workers, got five years each.
They began serving their sentences in May last year.
But they launched a review application claiming the magistrate had been “hostile” and they were released from jail in March. Pietermaritzburg High Court Judge Piet Koen found there had been a “gross irregularity” during their sentencing and there was a “perception” that the magistrate had been biased.
He ordered that they be resentenced by a different magistrate.
Perumal was tasked with this and, after studying the record, hearing argument and considering correctional supervision reports, he handed down sentence on Thursday, giving the three main accused 10 years each and reducing the sentences of Chutshela and Dlezi to three years each.
He did not mention the nine months they had already served.
He said the crime was serious, drug addiction was devastating and the permissible sentence was as long as 25 years.
He said legislators had increased the penalty and the sanction was the same for dealing in all drugs.
While all five were first offenders “and courts endeavour to avoid sending first offenders to prison”, this was not cast in stone.
Their advocate, Shane Matthews, said he would apply for leave to appeal all the sentences “because the court did not consider correctional supervision”. In the case of Pretorius and Hofland, he would also appeal against their convictions.
While prosecutor Wendy Greef suggested they should start serving time, the magistrate said they had been attending court regularly and extended their bail. They will appear again on August 8.
The matter went before another high court judge when they sought a review of their convictions, claiming they had been poorly represented by their advocate, JP van der Veen.
But this case was dismissed by Judge Gregory Kruger after Van der Veen submitted an affidavit in which he claimed they had confessed to him but had refused to plead guilty and he had run the case the only way he could.
Yesterday’s sentence drew mixed reactions from criminal lawyers.
“Absurd. An over-reaction,” was how one put it. “It is definitely appealable. This was a dagga lab and not one for dangerous drugs.”
But another said the accused would have been better off admitting guilt and saying sorry.
“How many reviews and appeals – how many chances – can they get?
“This is a minimum sentence crime. The magistrate has a discretion up to 25 years and a sentence can only be interfered with (on appeal) if it induces a sense of shock. This may be robust but is it shocking?
“Drug labs are being discovered in middle-class suburban homes all the time. The crime has become a serious problem,” the lawyer said.