Sharika Regchand
SETTING aside five Durban North residents’ convictions for drug dealing because of their discontent over how their advocate conducted their defence could set a precedent allowing anyone to bring similar applications arguing that their lawyers were “idiots”.
Judge Gregory Kruger, sitting in the Pietermaritzburg High Court, expressed this view yesterday while hearing an application for the review and setting aside of the group’s dagga convictions.
Judge Kruger said there was an “inherent danger” that every convicted person would say his attorney was an “idiot”.
The review pertained to Tracy-Anne Pretorius, her boyfriend, Tyronne Hofland, Travis Bailey, Bonzile Chutshela and Senzele Dlezi, who alleged that the advocate who represented them at their trial, JP van der Veen, was incompetent.
They were convicted by the Durban Magistrate’s Court last year for dealing in dagga.
This followed a police raid on 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.
‘Confessed’
Facing a jail term, Pretorius and Hofland launched this application, which the others joined yesterday.
In response, Van der Veen made local legal history by disclosing that they had confessed their crimes to him.
He said they had refused to plead guilty, and that he could conduct their defence only “on the basis of the interpretation of the definitions contained in the Drugs Act”, which he believed was winnable on appeal.
Yesterday, advocate Shane Matthews argued before Judge Kruger and Judge Fikile Mokgohloa that Van der Veen’s conduct and the nature of the defence he had put up had been irregular.
Matthews said three issues were raised as to why the matter should be set aside. One was that the advocate had destroyed his clients’ defence by raising a constitutional defence which, when viewed objectively, could not constitute a defence.
The other was that the advocate had failed to raise this defence at the outset of the trial.
The third was that the advocate had not obtained his clients’ version.
But the advocate said in court papers that, given that his clients had confessed to him and had refused to plead guilty, he could conduct their defence only “on the basis of the interpretation of the definitions contained in the Drugs Act”.
Judge Kruger said that someone was lying, and perhaps oral evidence should be heard on the issue.
Matthews also submitted that Van der Veen’s conduct at the trial should be referred to the Advocates’ Society of KwaZulu-Natal.
Yuri Gangai, for the State, who was opposed to the application, said he was not going to argue if the defence put up had been good or bad. It had been a defence in any event.
“It was a defence agreed upon by the applicants,” he said.
Had it worked, the applicants would not have come to court to complain. They said in their first affidavit that they had not consulted their advocate, but in another they provided consultation notes, Gangai said.
Judgment was reserved.
