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.
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.