Durban - In an “extra-ordinary” urgent high court application on Friday, lawyers acting for five Durban North convicted drug dealers complained about the conduct of the magistrate hearing the case and have stopped her from handing down sentences next week.
They secured a fresh date for argument on sentencing in three months time.
Attorneys Jacques Botha and Lourens de Klerk told The Mercury that in their time as lawyers - 23 and 30 years respectively - they had not seen such conduct.
“I placed on record (before the magistrate) that we are heading for a serious abuse of process,” Botha said.
De Klerk said it was clear that Magistrate N Kathrada “ is angry with our clients”.
“We believe that she cannot be objective in sentencing and we will bring another application to the high court for her recusal,” he said.
The magistrate is presiding over the trial of Durban North mom Tracy-Ann Pretorius, her boyfriend Tyronne Hofland, Travis Bailey, Bonzile Chutshela and Senzele Dlezi, all of whom have been convicted of drug dealing relating to the cultivation of 44kg of dagga in the basement of Pretorius’s home.
After they were convicted, sentencing was delayed while they applied to the Pietermaritzburg High Court for a review, arguing that their advocate, JP van der Veen, had been incompetent and had not placed their versions before the court.
Van der Veen hit back and, in an affidavit that came before Judge Gregory Kruger, said this was because they had admitted their guilt to him and that as an officer of the court he could not mislead it.
Earlier this month, Judge Kruger dismissed the defendants’ application, saying they had received a fair trial and sentencing should proceed.
But, when they appeared before Kathrada on Thursday, tensions simmered between the magistrate and defence attorneys Botha and De Klerk and advocate Shane Matthews when she repeatedly refused all applications for postponements to allow them to get probation officers’ reports and call witness. She also refused an application that she recuse herself, calling it “frivolous”.
Matthews said he was perturbed by the court’s attitude, saying it was “a gross irregularity for a trial court to refuse the defence an opportunity to consult expert witnesses”.
Kathrada replied that there had been ample time, since November, for the defence to prepare for mitigation of sentence.
“There has been a trend of numerous delays in the case, including for two reviews to the high court. It seems that trend is continuing. Numerous indulgences were granted to the accused in this case. I am not treating this case any differently to any other case that comes before me,” she said.
Even State advocate Wendy Greef said she was not opposed to an adjournment because she had seen from reported judgments that refusing the defence access to sentencing reports often “backfired at a higher court”.
Kathrada said she was not willing to grant any adjournment and ordered Botha to start with his evidence in mitigation of sentence.
He called Bailey, who testified that he was the mastermind behind the operation and attempted to take all blame.
Botha then closed his case.
He told The Mercury that he had placed on record that he had been prevented from putting certain information about his client before the court.
The day concluded with the magistrate insisting that sentencing proceed next Tuesday, even though no one would be available and they had all suggested another date in the first week of February.
These problems were raised by De Klerk in his hastily prepared affidavit which came before Judge Piet Koen on Friday.
“The application was extra-ordinary and indicative of the problems we had,” said Botha.
The judge granted a provisional rule, overturning the adjournment date and setting May 2 as the new one.
The application was not opposed by the State, and the magistrate may file opposing papers.
The accused, who are out on bail, will, however, have to appear in court on Tuesday so that the matter can be officially adjourned to the new date.