Tigon-accused Gary Porritt (69) has forfeited the honorary title of ‘Oom’ (uncle) that normally signifies the wisdom of a man his age, according to Johannesburg High Court Judge Ramarumo Monama.
Monama dismissed Porritt’s application to be released on bail to avoid the risk of contracting Covid-19 in the Johannesburg prison where he has been held since the withdrawal of his bail about three years ago.
Porritt and his co-accused Sue Bennett are currently on trial and face more than 3 000 charges of fraud, racketeering and contravention of the Income Tax Act, the Companies Act and the Exchange Control Act.
This relates to the collapse of JSE-listed financial services group Tigon around 2002. Porritt was the CEO of Tigon and Bennett a director.
The pair were arrested in 2002 and 2003 respectively, but the trial only started in 2016 following repeated delays to deal with numerous applications and appeals brought by the accused.
Porritt had to show that there was new evidence for the court to consider a fresh bail application.
Prison conditions are nothing new
Monama however ruled that the application was based on prison conditions, including overcrowding, which is nothing new and dismissed it.
He said the charges Porritt is facing are extremely serious and involve millions of rands. He said the case has a “long and checkered” history and the withdrawal of his bail was not done arbitrarily. While Porritt was out on bail, he used every opportunity to delay proceedings and is continuing with this strategy.
Monama said he cannot blame Porritt for doing this, because he is exercising rights that are available to him in terms of the Criminal Procedures Act and the Constitution, but there are consequences to exploiting the vulnerabilities in the criminal justice system.
He pointed out that the state denied Porritt’s allegations that the prison authorities fail to follow the protocols to protect inmates against Covid-19 and that Porritt did not deal with this denial in his replying affidavit.
If there are concerns with the prison facilities and prison authorities’ capacity to protect prisoners, they cannot be addressed in a bail hearing, Monama said. Porritt did not provide any reason for his failure to use more appropriate remedies, he said.
Exploiting the pandemic
Monama referred to the state’s argument that Porritt took advantage of Covid-19 as “a very painful situation” that not only South Africa, but the whole world is going through, with many people dying.
He added that Porritt is “not a baron of virtue”.
According to affidavits from fellow inmates and prison staff, he created “his own class of people” of poor character in prison who he can manipulate, and Porritt failed to answer to that, Monama said.
These affidavits described how Porritt allegedly arranged a prison riot and staged misleading pictures about prison conditions to be sent to various authorities and journalists.
Monama said at his age Porritt should be entitled to be addressed in a dignified manner of speech and referred to as an “Oom” (uncle).
“Unfortunately, Mr Porritt denied himself that benefit, partly through associating with people in prison to undermine the correctional services,” Monana said.
Porritt’s continued incarceration is also addressed in an application Bennett has filed for the recusal of trial judge Brian Spilg.
Bennett argues in her founding affidavit that Spilg conflated two different sections of the Criminal Procedure Act when he held an enquiry into Porritt’s failure to attend court in June 2017.
She believes that resulted in Spilg incarcerating Porritt indefinitely instead of for a year as the act provides for, according to her.
“In doing so, Judge Spilg failed, in submission, to observe the preemptory provisions of the Constitution which required him to make orders that are just and equitable and to protect and regulate the court process where it is inconsistent with the Constitution and therefore invalid,” she argues.
She alleges that Spilg often interrupted Porritt’s evidence during the bail enquiry and his conduct towards him was often intimidatory. He refused to hear relevant evidence and ignored evidence by medical professionals and substituted it with his own diagnosis of malingering (feigning illness), she states.
In doing this: “Spilg not only evidenced deep-seated antagonism towards Porritt, but an intention to cause him harm,” she states.
The recusal application, which has been joined by Porritt, will be heard on September 7. Both accused are represented by legal counsel with regard to the recusal application, but remain unrepresented in the criminal trial.
The criminal trial has been postponed to the same date.
Bennett must still complete her cross-examination of forensic auditor Linda MacPhail, who earlier testified about the flow of money from Progressive Systems Guaranteed Growth (PSCGG), an investment fund underwritten by Tigon, to various entities allegedly linked to the accused.