Drug ‘dealers’ on a high as charges go up in smoke
The group of five had been jailed for running a dagga lab, but after a long time before the courts they have been let off the hook
Five convicted drug dealers, who were facing lengthy jail sentences for running a “dagga lab” out of a house in Durban North, are effectively off the hook.
In part, the decision by KwaZulu-Natal Judge President Achmat Jappie, with Judge Sharmaine Balton concurring, to overturn the 10-year sentences given to Travis Bailey, Tyrone Hofland and mother of two Tracy-Anne Pretorius, was because “mastermind” Bailey had testified that he wanted to extract oil from the plants for medicinal purposes and not peddle the drugs.
The three – along with labourers Bonsile Chutshela and Sensele Dlezi – were arrested at the Briar Lane home Pretorius shared with Hofland in October 2010 after a raid headed by Warrant Officer Luke Tancrel.
At a trial in the Durban Magistrate’s Court, the policeman testified that while searching the premises he noticed a “vault” under a set of stairs.
He entered what appeared to be a storeroom and came across Bailey and the two workers.
When he switched on the lights he saw the large room was filled with bags. There were halogen lights hanging over growing plants, some of which were waist-high.
The accused elected not to testify and were convicted of dealing in 44kg of dagga.
But the case then took many twists and turns.
The accused attempted to delay sentencing and brought a high court review arguing that their legal representative had not consulted properly with them.
This was dismissed.
They then made an application for the recusal of the magistrate. She refused and they took this on review.
In the meantime she handed down sentences of eight years to Bailey, Hofland and Pretorius, and five years to Chutshela and Dlezi.
They all began serving their time. But 11 months later, in April 2014, the high court agreed that the magistrate should have recused herself, the sentences were set aside, they were released on bail and the matter came before a new magistrate for re-sentencing.
Things got worse for Bailey, Hofland and Pretorius when the new magistrate upped their sentences to 10 years. The sentences for Chutshela and Dlezi were reduced to three years.
They immediately took this on appeal.
The matter was only argued late in 2018 – the delay a strategic move to await the outcome of the Constitutional Court ruling that legalised the personal use of dagga.
But this issue, the appeal judges said, had minimal effect on the final outcome.
Instead, they said the sentencing magistrate had been wrong in sending them to prison, especially given the fact that Bailey had confessed that the “lab” had been his idea and he wanted only to extract oil.
Hofland, they said, had played no part in the scheme and had in fact expressed unhappiness about it. His only crime was “silence”.
While Pretorius was aware of what was going on – and had rented the space to Bailey – the sentencing magistrate had placed too much emphasis on the fact that her children lived there when there was no evidence to suggest any potential harm to minors.
“She is now 43 and in steady employment. She too served 11 months in jail. Although she facilitated the cultivation, she had no pecuniary interest in it,” they said.
Chutshela and Dlezi appeared to have acted out of “economic necessity” and did not stand to gain anything, other than their wages.
They were all just “bit players”, the judges said.
Regarding Bailey, the judges said he had been naive in setting up the lab.
“He is no doubt aware of the foolishness of his conduct and is unlikely to embark on a similar scheme in the future. It would not be in the interests of justice for him to be further incarcerated.”
They sentenced him to five years, suspended for five years, and a fine of R20,000.
The other three were given three years, suspended for three years.
Because of the passage of time, all the sentences have run their course.