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Tigon judge to consider recusal

Porritt and Bennett ‘are playing the system’ – judge.

Judge Brian Spilg, who presides over the protracted criminal trial of former Tigon CEO Gary Porritt and his co-accused Sue Bennett, will on December 12 hear arguments before considering whether he should recuse himself.

Porritt and Bennett, a former Tigon director, are facing more than 3 000 charges including fraud, racketeering and contraventions of the Income Tax Act. The charges are related to the collapse of listed financial services group Tigon around 2002.

The pair were arrested in 2002 and 2003 respectively, but the trial before Spilg only started late in 2016 after numerous delays – among others, due to applications and appeals brought by the accused.

This included a failed attempt to get rid of the prosecuting team due to alleged bias. Among other things, the accused objected to prosecutor Advocate Etienne Coetzee SC’s appearance being funded by the South African Revenue Service (Sars).

The current trial is the second bite at the apple after Judge Geraldine Borchers in September 2011 recused herself even before the substantive matters were addressed. Business Report at the time reported that she said she’d interacted with Porritt and Bennett so much over this period that she could not trust herself to be impartial.

Both accused are representing themselves, pleading poverty, with Porritt’s family engaging counsel for him from time to time. Porritt has been incarcerated since June 2017 after he failed to appear in court while on bail.

Read: Tigon-accused Porritt in new bid for freedom

The latest chapter follows Bennett on September 17 bringing an application for a special entry under Section 317 of the Criminal Procedure Act. This provides for the accused to apply for a special entry in the record of an alleged irregularity contravention of the law connected to the trial in the trial record. Such an entry could prepare the ground for an appeal, should the accused be found guilty.

Spilg dismissed the first part of her application. He said the second part addressed “the propriety of my hearing the matter”. He said if this entailed a perception of bias on his part, it could not “fester awaiting the outcome of a special entry” on appeal.

He characterised the content of the application as “an attack against my position as a judge and on my personal integrity”.

Bennett conceded regarding her application that “in substance it clearly is a recusal application”.

On October 15 she submitted a formal application of more than 1 000 pages, for Spilg’s recusal.

She cited Porritt as a respondent, but Spilg would have none of it. “I am satisfied that Porritt and Bennett are playing the system”, he stated in a ruling on October 16.

Porritt, who was represented by counsel with regard to Bennett’s application for a special entry, has since indicated that he will support Bennett’s application and plans to submit an affidavit to that effect. He has since terminated the mandate of his legal team and it is not yet clear whether he will have any representation when the recusal application is being heard.

Both Porritt and Bennett apparently assumed that the trial will be halted, pending the outcome of the recusal application, but Spilg ruled that it should continue.

The cross-examination of the state’s first witness Jack Milne – the former MD of Progressive Systems College Guaranteed Growth (PSCGG), an investment fund underwritten by Tigon – has not yet been completed, more than three years after the trial started.

“I cannot allow in the interest of justice and the convenience of witnesses whose cross-examination is close to completion, to stay the matter,” he stated. “The trial has been delayed long enough. Three courts, including the SCA, have commented on the accused being determined to delay the trial. More recently I have been obliged to make a similar finding.”

Spilg set down dates for the parties to file papers for the recusal application. If they stick to these dates the hearing will be on December 12, otherwise early in 2020.

The trial will resume on November 13 and 14, when Milne’s testimony might be concluded. The testimony of forensic expert Professor Harvey Wainer has been concluded and the state indicated that it would call the next forensic auditor, Linda MacPhail, to testify about PwC’s forensic audit of PSCGG.

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COMMENTS   11

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In our justice system, the accused accuses the judge and then the accused becomes the judge en the judge becomes the accused. Then, they have a trial within a trial. When the parties manage to figure out who is where, one of them dies of old age and the other party retires on pension.

The Chinese invented a system to circumvent this inefficient, costly and time-delaying legal process. They call it the firing squad. It is really quick and very efficient. They have only one problem though. There is no way for them to reverse their mistakes.

This circus act is a consequence of S.A.’s legal system which has been specially designed to afford the rich and famous and the politicos all manner of loopholes to evade/avoid justice (under the guise of a “fair trial”). It is a disgrace!!!!

I think that Judge Spilg should not recuse himself and he should be more strict in the proceedings. Porritt and Bennett are both dragging this out and making in even more of a circus by not accepting state-funded legal counsel and representing themselves.

Obviously they cannot be forced to accept legal counsel but if they are purposely dragging the case out, they must be disciplined.

Lock them away.

welcome to SA where the law and the art of obfuscation have merged

THIS is a joke. They steal money from people then steal from us all by dragging out the trial. Watch out Jacob will do the same. Im sick of these two leeches

What fun. Moneyweb is deleting comments from readers yet again. So much for inviting them in the first place…

SPAP, it stands to reason that Moneyweb needs to moderate comments on a ‘social’ platform. They cannot afford to have unnecessary legal cases brought against them or their readers.

Hey Viv, the comment was very innocuous. Along the lines of the entire trial being a circus and that Spilg (who has 100% control over his own court diary) needs to shake a leg on this. I concurred with his decision to not allow this latest stunt to further delay things and did use the phrase ‘p*ssed off’. Not really slander or potential for legal cases.

SPAP, Got ya!-

The guilty parties here are the Supreme Court of Appeal (SCA) and the Department of Justice. They have failed to curb this waste of taxpayers money.

The solution is a rule that any accused is only allowed two postponements, to get his defence in order. If the accused fires his legal representative, he then gets a legal aid counsel. If he fires the legal aid counsel (to stretch out proceedings) he is on his own.

The judges are too scared of mistrials and the SCA have failed to back them up.

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