Judgment reserved in drug conviction review

2012-11-02 00:00

IF the high court were to set aside the drug-related convictions of Tracy-Anne Pretorius, Tyrone Hofland and their co-accused because they were unhappy with their legal representation it would “open a can of worms”.

This was one of the submissions made by state advocate Yuri Gengai SC yesterday before Judge Gregory Kruger and Judge Fikile Mokgohloa, who have been asked to review the trial of the two Durbanites and their co-accused, Travis Bailey, Bonzile Chutshela and Senzele Dlezi.

They were all convicted of dealing in dagga by a Durban magistrate last November; however, sentencing was halted after Pretorius and Hofland went to court alleging their defence was compromised because of the incompetence of their advocate, J.P. van der Veen.

The men were arrested in October 2010 after police found 44 kilograms of dagga worth R2,2 million which was cultivated in a concealed basement at Pretorius’s house in Durban North.

In papers prepared by advocate Kemp J Kemp SC, it is argued that Van der Veen failed to perform the most basic functions expected of counsel, resulting in a complete failure of justice.

It is submitted that he had completely destroyed the accused’s defence by raising a constitutional defence “which objectively viewed could not constitute a defence”; and he only raised it for the first time following the closure of the state’s case.

It is also alleged that he never consulted properly with the accused to obtain their version of the merits of the case and provide a complete defence.

This is denied by Van der Veen, and the judges yesterday questioned whether or not that issue should be referred for oral evidence.

In his response to his former client’s attack, Van der Veen alleged in an affidavit that the accused had confessed their crimes to him, but had refused to become state witnesses or plead guilty.

He maintains that he could conduct their defence only as he had done.

Gengai said in heads of argument for the state that the general rule is that a litigant is bound by what is done by his legal representative.

He said in this case the probabilities were that the accused had confessed their part in the offences to Van der Veen and willingly went along with his suggestion of a constitutional defence.

He said if the outcome of the trial had been different they would not have complained, and the State submitted that the application was opportunistic and calculated to give the accused the chance to escape liability for their actions.

Judges Kruger and Mokgohloa reserved judgment.

• ingrido@witness.co.za

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