Magistrate alleges ploy to discredit her

2013-02-19 00:00

A DURBAN magistrate believes criticisms of her conduct in the trial of five convicted dealers found guilty of cultivating dagga at a Durban North home are a ploy to discredit her so that their convictions will be set aside.

Magistrate Najama Kathrada alleged that after failing in a prior attempt to discredit their former advocate, J.P. van der Veen, by accusing him of incompetence, the “next line of attack is strategically discrediting the magistrate in order to have the convictions set aside”.

She refuted allegations by the accuseds’ legal representatives that she had committed a “gross irregularity” by refusing to adjourn the case to enable the defence to obtain pre-sentencing reports on behalf of their clients when the case came before her on January 24.

This was the accuseds’ first appearance since high court Judge Gregory Kruger dismissed a previous review application on January 18.

The accused — Durban North mother Tracy-Ann Pretorius, her boyfriend, Tyronne Hofland, and their co-accused, Travis Bailey, Bonzile Chutshela and Senzele Dlezi — obtained an urgent court order the following day ( January 25) stopping Kathrada from continuing with sentencing procedures in the matter until May 2, and restraining her from imposing sentence pending the outcome of another application for a review of their case.

In an affidavit in support of that application, defence attorney, Lourens de Klerk (who represents Chutshela and Dlezi), said all the accused believed that they had not been fairly treated by the magistrate, who continuously made remarks about delays in the case.

“It would be fair to say that all the applicants [accused] are terrified of the magistrate and her attitude,” he said.

He further alleged that it became “patently clear to all that the magistrate was more concerned about the case being on her roll for a long period of time than ensuring a fair sentencing procedure”.

De Klerk termed Kathrada’s behaviour on January 24 as “nothing short of a disgrace”.

He said that when legal representatives, he including, had requested that Kathrada recuse herself “because it was pertinently clear that the accused were not receiving a fair hearing”, she had asked if that was “just another delaying tactic”.

In her replying affidavit yesterday, Kathrada said a refusal of “unnecessary postponements” did not render a trial unfair; nor was that a reasonable ground for a recusal application.

She also said the allegation that the accused were “terrified” was without merit.

“If anything, the court has been most lenient with the defence by allowing several postponements to avoid any prejudice to the accused.”

She said it seemed the “indulgences” granted by the court had “not been profitably used”.

Kathrada said the case had been postponed 22 times since being enrolled, and 12 times following the accuseds’ conviction in November 2011.

The case had been outstanding since October 22, 2010.

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