Durban - Durban North mother Tracy-Anne Pretorius, her boyfriend Tyronne Hofland and three others found guilty of drug dealing could go to jail this week after an attempt to throw out their convictions was rejected by a Pietermaritzburg High Court judge.
In his ruling on Friday, Judge Gregory Kruger said it was not in the interests of justice to allow them “any further opportunity of escaping liability”, slapping down their argument that the advocate who represented them at their trial in the Durban Magistrate’s Court had been incompetent.
“It is always easy in hindsight to allege that an accused’s defence was improperly conducted,” he said, vindicating advocate JP van der Veen.
Pretorius and Hofland, as well as their three co-accused, Bonzile Chutshela, Senzele Dlezi and Travis Bailey, were arrested in October 2010 following a raid at Pretorius’s home, where 44kg of dagga, worth approximately R22 million, was found under cultivation in a concealed basement.
They were convicted last November, but asked that sentencing be postponed while they brought the review application in the high court, arguing that Van der Veen was “totally incompetent, that he had never properly consulted or asked for their version, but had put up a technical defence based on the constitutionality of South Africa’s drug laws”.
The case made headlines when the advocate, breaking the sacred rule of attorney-client privilege, disclosed in his affidavit that Pretorius and Hofland had, in fact, confessed their crimes to him.
He said he had told them he could not run an “affirmative defence” because, as an officer of the court, he could not mislead it.
He claimed to have spent more than 40 hours consulting and had even, at times, returned to his home to find Pretorius there wanting to discuss the case with him.
Judge Kruger described as “startling” the failure of instructing attorney Sarah Pugsley to provide the court with full and precise details of all her consultations with her clients, as well as her involvement in the case.
“As an officer of the court, it was her paramount duty… to assist the court,” he said, noting the applicants had waived their attorney-client privilege.
He said that what emerged clearly from Van der Veen’s affidavit was that incriminating details emerged during consultations, including the fact that Chutshela and Dlezi were involved only in so far as supplying manual labour; the involvement of another man, Steven Cope, from Cape Town; the duration and financing of the operation; and details of how the profits would be shared.
The judge said the probabilities also favoured the advocate’s version that he had gone to Cape Town to see Cope on the instruction of Pretorius, Hofland and Bailey, that Cope was involved in the operation, and that he wanted an assurance he would not be implicated in the trial.
The judge said personal information about Pretorius’s children, the fact that their father had instituted legal proceedings, and the problems she was having with her employers and clients as a result of her arrest could only have been known by Van der Veen if he had properly consulted with her. His disclosure that they had confessed to him had also never been challenged.
“I am satisfied that there was adequate and proper consultation, and that they agreed to follow his advice and to conduct the trial accordingly,” he said, finding that Van der Veen had also complied with the rules of his profession, which dictate that advocates cannot assert in court what they know to be untrue.
He said the applicants had “taken a chance” on escaping conviction by relying on a constitutional challenge.
Now that this had failed and, “as per new-found legal opinion”, is doomed to fail on appeal, it would not be in the interests of justice to allow them to escape liability.
Sentencing is expected to proceed on Thursday.