With little real progress made in the criminal trial of Tigon-accused Gary Porritt and Sue Bennett so far this year, Judge Brian Spilg has now issued an extensive order that preemptively deals with possible further delays when the trial resumes on September 8.
This includes the possibility that any of the accused raising health issues for failure to appear or prepare for court as directed may be sent for observation while the trial continues in their temporary absence.
Read Moneyweb’s full coverage of the Tigon case here.
Porritt, the former CEO of financial services group Tigon, and Bennett, a former director, are facing more than 3 000 charges, including fraud, racketeering and contravening the Income Tax and other legislation.
Tigon was a top performing company on the JSE when in collapsed around 2002. Porritt was arrested in that year and Bennett in 2003, but their criminal trial only started in 2006.
The two are representing themselves, saying they cannot afford lawyers, and have been accused of trying every trick in the book to delay the proceedings.
Porritt has been in jail for the past four years after failing to appear in court in June 2017.
Bennett is on bail, but a warrant for her arrest was authorised on July 26 and 27 due to her failure to appear in court, apparently due to health problems. This is normal in such circumstances. The warrants have not been issued and will be cancelled if she attends court on the set dates in September.
The slow progress so far this year is partly due to limited available court days, Bennett’s health problems, and a scare when Porritt was exposed to Covid-19.
Since the beginning of the year the court has only dealt with the admissibility of affidavits and documents emanating from Hong Kong, opposed by the accused. This has to be completed before the next witness, Grant Ramsay, who acted as external auditor for Tigon, takes the stand as the next state witness.
Efforts to prevent further delays
Spilg has now ordered that all parties should be online on September 8 for Porritt to continue his argument opposing the admission of certain of the Hong Kong documents.
Both accused were given clear time limits for their opposing arguments and Bennett has been ordered to prepare written arguments timeously, setting out the exact nature and grounds for her objections.
She will be allowed oral arguments as well, but if she fails to appear in court as the court deals with these documents, she will be referred for observation in terms of the Criminal Procedure Act to determine if she is fit to stand trial.
This applies “should the reason be her inability to attend court by reason of any physical or mental condition” which includes but is not limited to severe depression disorder, convulsion disorder or anxiety disorder.
If she does attend court but has failed to prepare the written arguments as directed, the court will also consider sending her for observation – or, if there is no valid reason for her absence, determine whether she is guilty of contempt of court.
Spilg ruled that the trial will continue in her temporary absence if she is indeed sent for observation.
He further directed her to “conscientiously follow such advice, treatment and medication regime as may be prescribed or recommended by her treating medical practitioners prior to September 7 and thereafter subject to any court determination”.
Spilg gave a detailed order for Porritt to consult with Bennett before the hearing resumes and gave clear directions to preempt any excuse he may have in this regard. This includes raising the matter timeously with Correctional Services or the investigating officer Warrant Officer Sandra van Wyk so that any impediments may be removed.
Porritt must prepare written arguments “setting out in point form” his objections against the admission of certain of the Hong Kong documents, failure of which may limit his opportunity to present oral arguments on the matter.
Before Ramsay takes the stand, both accused must present to the court, in writing, a list of the documents brought by Ramsay they at that stage agree may be admitted, and after his evidence-in-chief they will be given two days to each prepare a further written document, indicating which aspects of his evidence they plan to challenge during cross-examination.
The court will then decide how much time they get for cross-examination.
Medical examination ordered for Porritt
Spilg further ordered that Porritt be examined by Dr Tsitsi, a physician who earlier testified in court about Porritt’s health, with Tsitsi informing the court by September 6 for how many hours per day and how many days per week Porritt, who is in his 70s, should attend court.
When Ramsay takes the stand, Spilg wants the trial to continue in the presence of all parties in the High Court in Johannesburg and has given everybody fair notice, with directions as to by when they should present arguments should they object.
Spilg makes it clear that should either Porritt or Bennett object on the basis of matters concerning their health, they may be sent for observation.
Instructions for the state
Lastly Spilg ordered the state to obtain the audiovisual recording and a transcript of the proceedings of July 26. These will inform his decision whether Porritt is in contempt of court by scandalising the court or the judiciary during those proceedings.
The spotlight will then also fall on Porritt’s utterances in relation to a possible complaint against Spilg at the Judicial Services Commission that may lead to impeachment or other disciplinary procedures and a decision as to whether it amounts to contempt of court, or is unconstitutional or impermissible – specifically since the trial has not yet been concluded.
A previous application for Spilg to recuse himself has been dismissed and leave to appeal was denied.