Durban - The incompetence of the advocate who represented a couple found guilty of drug dealing and operating a dagga laboratory from a Durban North home, was so great that the conviction should be set aside and a new trial ordered.
This was the submission by the couple’s new advocate, Shane Matthews, at the review application at the Pietermaritzburg High Court yesterday.
The couple want their convictions set aside because they claim their legal representative at the time of their trial, JP van der Veen, had been incompetent.
The review application was heard before Judges Gregory Kruger and Fikile Mokgohloa yesterday where judgment was reserved.
Tracy-Anne Pretorius and her boyfriend, Tyrone Hofland, claim that the irregular conduct of their advocate, infringed their right to a fair trial.
They allege that Van der Veen failed to perform the most basic functions of council in three particular respects:
l He completely destroyed their defence by raising a constitutional defence which objectively viewed would never constitute a proper defence.
l His failure to raise the constitutional defence at the onset of the trial prejudiced the couple and left them with no other option to reconsider their position on how best to conclude their trial. Van der Veen only raised the defence after the State had closed its case.
l He did not consult with the couple and obtain their version.
Matthews submitted that Van der Veen’s conduct was so irregular, that it was fatal to the trial proceedings, and hence the trial and subsequent convictions must be set aside.
Judge Kruger said that in order for the court to set aside a conviction, especially before sentencing had occurred, the couple must show exceptional circumstances existed and demonstrate a complete failure of justice.
“The danger here is that then every accused who is not satisfied with their conviction will come to court saying that their advocate is an idiot and misrepresented them,” the judge said.
Matthews argued that Van der Veen’s conduct necessitated a setting aside of the convictions.
“On the reading of the record, no court can come to the conclusion that the couple were adequately represented,” Matthews said, referring to a portion of the trial record which he labelled a “garbled mess”.
“His conduct is tantamount to a fundamental irregularity that is affecting the proper cause of justice,” he said.
In replying papers before the court, Van der Veen denied all the allegations against him and disputed that he failed to consult with his former clients.
The advocate turned on his clients, making local legal history and bringing into question attorney-client privilege when he disclosed in his affidavit that they had confessed their crimes to him.
He said they had refused to plead guilty and he could only conduct their defence “on the basis of the interpretation of the definitions contained in the Drugs Act”, which he believed was winnable on appeal.
Pretorius and Hofland deny this.
“Justice can only be served if this conviction is set aside and we are afforded an opportunity of competent defence in a retrial,” they said.
The State has opposed the application, with advocate Yuri Gengai arguing that the couple are bound by what their legal representative did at trial.
“The probabilities favour that the couple did confess their part in the commission of the offence to Van der Veen and willingly went along with his suggestion of a constitutional defence,” Gengai said, adding that Van der Veen, who has been in practice for 10 years, carried out his mandate as effectively as he could.
Gengai described the application by the couple as “opportunistic and calculated”, to afford them a second opportunity at escaping liability for their actions.
“It is submitted that the couple accepted Van der Veen’s defence strategy and did so at their own peril. They went along with it as long as they thought it would succeed,” Gengai said.
The couple were convicted in the Durban Magistrate’s Court last year of dealing in dagga, along with Travis Bailey, Bonzile Chutshela and Senzele Dlezi.
This was after a raid at Pretorius’s Durban North home, where 44kg of dagga worth an estimated R2.2 million was being cultivated in a laboratory in a concealed basement.
Daily News