Durban - Less than three months after beginning lengthy prison sentences, drug dealers Tracey-Anne Pretorius, a mother of two from Durban North, and her four co-accused are angling to get out of jail.
Pretorius, her boyfriend, Tyronne Hofland, and friend Travis Bailey, all serving eight years, and Bonzile Chutshela and Senzela Dlezi, serving five years, have petitioned KwaZulu-Natal Judge President Chiman Patel wanting to appeal against their convictions and sentences. Should he grant this, they say they should immediately be given bail.
They have also lodged a review application, seeking to overturn the entire trial before Durban magistrate Najma Kathrada, claiming gross irregularities and severe bias and malice.
The five have been in Westville Prison since early May after being convicted of drug dealing following a raid on Pretorius’s home, where 44kg of dagga was found under cultivation in her basement.
The case has had many interesting twists and turns.
After being found guilty in November 2011, they applied in the high court for a review of their convictions saying their advocate, JP van der Veen, had not represented them properly.
But the advocate shot back, breaking attorney/client privilege, saying that they had admitted their guilt to him and he had no choice but to run the trial the way he did.
The application was refused by Judge Gregory Kruger.
When the matter went back to Kathrada for sentencing, there was more drama with verbal sparring between her and their new legal representatives.
The magistrate ordered an “eavesdropping” transcript - a recording of what she said were “appalling derogatory statements” made about her while she was not in court - which she referred to the local law society and society of advocates.
It is this conduct which forms the basis of their review application which, if successful, will also see them let out of jail and their trial begin afresh.
In their affidavits, filed with the Pietermaritzburg High Court, they say they have been deprived of a right to a fair trial because of the “hostility and adverse stance” adopted by the magistrate and “resultant bias which tainted proceedings”.
This was evident through the “illegal recording” done, they say, to embarrass them and their legal representatives.
And, by referring the “unethically obtained” transcript to their lawyers’ professional bodies, she had demonstrated “an extraordinary degree of malice”. They say the magistrate showed intolerance by repeatedly interrupting legal representatives and not giving them a fair opportunity to present evidence in mitigation of sentence.
What little evidence was placed on record was then ignored, and they had the impression that she had “long since decided on a custodial sentence”.
Bailey, in his affidavit, said he recalled one occasion when the magistrate had picked out attorney Lourens de Klerk, alleging that he was shouting.
“As a witness to these proceedings, I point out that he did not shout… in, fact it was the magistrate who raised her voice, overruling the defence at every turn and, in an emotional fashion, accusing De Klerk of usurping the duty of the court.
“The record in this regard, when perused, appears comparatively sterile in contrast to what took place in court and does not fully reflect the emotion and anger of the magistrate, who was at times discourteous to the legal representatives,” he said.
“The record is permeated by demonstrated bias… and it is overwhelmingly in the interests of justice that this matter be reviewed.”
The magistrate is expected to oppose the application and will have to file an affidavit before the matter can be set down for hearing before a judge.
Jacques Botha, attorney for Bailey, told The Mercury they were still waiting for a decision from the judge president about the petition.
He said while the accused had all applied for leave to appeal against conviction and sentence, he would only proceed with an appeal against sentence for Bailey because he did not consider the conviction unfair in the circumstances.
The Mercury