Bad advice’ defence backfires

2013-01-19 00:00

HIGH court judges were unconvinced by arguments that five Durbanites, found guilty of cultivating dagga, had received an incompetent defence which caused them to be unjustly convicted.

Tracy-Anne Pretorius, her boyfriend, Tyrone Hofland, and their co-accused, Travis Bailey, Bonzile Chutshela and Senzele Dlezi, claimed to be victims of a “grave injustice” due to bad advice allegedly given to them by their advocate, JP van der Veen, who was instructed by attorney Sarah Pugsley.

They asked the high court to review the matter and to grant them a fresh trial.

The five accused were arrested in October 2010 after police raided Pretorius’s home in Briar Lane in Durban North and seized an estimated 44 kg of dagga, which was being cultivated in a laboratory in a concealed basement.

The dagga was said to be worth about R2,2 million.

Judge Gregory Kruger and Judge Fikile Mokgohloa rejected the accuseds’ complaint that they had not been competently represented and confirmed their drug-dealing convictions in a reserved judgment handed down in the high court in Pietermaritzburg yesterday.

Kruger said he believed the accused had decided “take a chance” on escaping conviction by relying on a failed constitutional defence and it would not be in the interest of justice to allow them a further opportunity to escape liability.

Sentencing of the five was halted following their convictions by Durban magistrate N. Kathrada in November 2011 pending the high court review.

The review application was originally brought by Pretorius and Hofland, but all the co-accused eventually aligned themselves with the application.

It was argued that Van der Veen had failed to perform the most basic functions of an advocate by raising a constitutional defence that “objectively viewed would never constitute a proper defence”.

The accused claimed to have been prejudiced by his failure to raise the defence at the outset of the case, only to raise it once the state had already closed its case. They said this had left them with no other options.

Hofland and Pretorius alleged further that Van der Veen never properly consulted them to determine their version.

In yesterday’s judgment, however, Kruger said that based on Van der Veen’s affidavit he was satisfied that there had been adequate and proper consultation between him and the accused and that they had agreed to follow his advice and conduct their trial accordingly.

Kruger said the court was satisfied that Van der Veen acted in accordance with the ethical rules of the General Bar Council of SA governing instances where a client makes a confession to his counsel before or during criminal proceedings.

As for the mistiming of the constitutional challenge, Kruger said whether Van der Veen was right or wrong in his approach could hardly be described as incompetence.

“Indeed, one must act on the assumption that a legal representative, entrusted with an accused person’s defence, is indeed competent,” he said.

It was always easy in hindsight to allege that an accused’s defence was improperly conducted, he said.

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