Another legal battle is looming between lawyers representing five Durban drug dealers and the magistrate presiding over the trial.
|||Durban - Another legal showdown is looming between lawyers representing five Durban North drug dealers and the magistrate presiding over the trial. This is after the magistrate ordered an “eavesdropping” transcript of what they allegedly said about her behind her back, be referred to their professional bodies.
And, with the criminal case set to go on review to the high court, it is likely that a judge will be the final arbiter on whether Magistrate Najma Kathrada had any right to listen to a recording taken when court was not sitting and then order a transcript of it and make it public.
It has also thrown into the spotlight the fact that the “black box” recording machines in every court, record everything that is said, even when a court is not actually in session.
The case has an acrimonious history. Last Friday’s sentencing of Tracey-Ann Pretorius, her boyfriend Tyronne Hofland, and Travis Bailey to eight years imprisonment, and Bonzile Chutshela and Senzele Dlezi to five years, will not be the end of it. Still pending is a review “on procedural grounds”, as well as an application to be allowed to appeal against their sentences and to be granted bail in the interim, .
The magistrate convicted the five accused - arrested after a raid on a “secret” dagga laboratory found in the basement of Pretorius’ home - in November 2011.
They brought a review application, arguing that their erstwhile advocate JP van der Veen was incompetent - but this was dismissed by Pietermaritzburg High Court Judge Gregory Kruger who accused them of attempting to delay sentencing.
Soon the matter was back in the high court when their new lawyers obtained an interdict, complaining about Kathrada’s conduct - that she was “angry” with their clients - and stopping sentencing for a few months.
They argued they did not believe she could be objective and that she should recuse herself.
While the magistrate did not oppose the application, she did submit an affidavit claiming that since conviction, the case had been postponed 12 times and she now believed there were efforts - as there were with advocate Van der Veen - to discredit her with a view to having the conviction set aside.
She said the lawyers, Jacques Botha, Lourens de Klerk and advocate Shane Mathews, had been disrespectful and had tried to bully her to secure further postponements.
She then put up the transcript of all proceedings from October last year to January.
She also ordered the transcription of “discussions during break” in which, she said, the lawyers had made “appalling derogatory statements” about her in the presence of court officials and the public gallery.
The Mercury has a copy of correspondence from the magistrate to the clerk of the court saying this was “imperative” because of the misconduct allegations against her.
The Mercury also understands that transcribers from Sneller objected to doing this.
The Mercury also has a copy of the transcription and, while no names or titles are attached to statements made during the “discussions”, the magistrate has penned in names in some places.
She says in her affidavit: “After listening to the record, I recognised the voices of Mr Botha, Mr De Klerk and advocate S Mathews.”
Two weeks ago, just before sentencing, De Klerk, for Chutshela and Dlezi, instructed advocate Russell Hand to make an application for the magistrate’s recusal.
He argued that the transcript was not only an invasion of privacy but also possibly a contravention of laws which govern interception of communication and recordings.
Refusing to recuse herself, she said it was her duty to place all information before the high court and she had the right to do what she had done.
While she did not refer to the issue in sentencing, she ordered that a copy of her judgment, and the case record, including the transcript, be sent to the KwaZulu-Natal law society and the Society of Advocates for a probe into the conduct of the legal representatives.
Botha said: “This practice is dangerous because attorneys sometimes sit and talk to their clients during tea breaks. It is not necessarily the recording that is the problem, although that is a regrettable intrusion. It is the decision to have it transcribed.”
He said the transcript of the informal discussion was also “irrelevant”.
Another lawyer, who did not wish to be named, agreed: “It is not the formal record. There is no proof as to who actually said what. But it’s scary to think that everything that is said is recorded and can be accessed. It is, in effect, eavesdropping on a private conversation.”
tania.broughton@inl.co.za
The Mercury