Tigon accused Gary Porritt on Monday had to eat humble pie and apologise to Judge Brian Spilg or face a contempt of court charge.
Spilg presides over the criminal trial of Gary Porritt and Sue Bennett in the South Gauteng High Court. The pair is standing trial on more than 3 000 charges of fraud, racketeering and contravention of the Companies Act, Stock Exchanges Control Act and Income Tax Act.
The charges relate to the collapse around 2002 of JSE-listed financial services group Tigon. Porritt was the CEO and Bennett a director of the group.
The accused were first arrested in 2002 and 2003 respectively, but the trial only started late in 2016 due to delays caused by numerous applications and appeals they brought. They are now pleading poverty and allege that they cannot afford legal representation. They are therefore unrepresented in the trial.
The state has however stated in court documents that Porritt has direct or indirect access to assets worth R100 million and accused the pair of using legal representation or the lack thereof as a strategy whenever it suits them.
Porritt and Bennett on Monday brought an application for the court to subpoena the former investigating officer Herman Smith to testify about the missing plea and sentence agreement the state concluded with its first witness, Jack Milne.
Milne was the CEO of Progressive Systems College Guaranteed Growth (PSCGG), an investment fund that was underwritten by Tigon but also collapsed. Milne pleaded guilty to charges including fraud relating to the events and was sentenced to eight years imprisonment, three of which were suspended.
He served his sentence and has now concluded his evidence in chief against the accused.
He testified, among other things, how he, Porritt and Bennett conspired by making misrepresentations in the PSCGG prospectus and subsequently falsified data released to investors.
It earlier came to light that Milne’s original plea and sentence agreement, concluded more than 15 years ago, went missing from the Johannesburg Magistrate’s Court’s archives.
The state submitted a copy and supported it with affidavits from then investigating officer Herman Smith and Milne’s counsel at the time, Adv Max Hodes SC, who confirmed the content.
Bennett on Monday told the court that the document was a fraud and that she and Porritt believed Milne pleaded guilty on much lesser charges than those reflected in the copy. The lesser charges did not implicate them, she said.
Spilg asked on what basis the magistrate would then have imposed a heavy sentence of eight years.
Bennett argued that the fact that the document went missing from several places, including correctional services’ records, demonstrates a conspiracy between Milne and the state against her and Porritt.
She said numerous other documents related to PSCGG and confiscated in 2003/4 were also not disclosed by the state, which made it impossible for them to cross-examine Milne.
Spilg pointed out that the accused have the right to subpoena witnesses and asked why they failed to subpoena Smith and Hodes.
He also advised them to subpoena KPMG that was apparently supposed to have compiled an index of the confiscated documents at the time.
KPMG is not on the state’s witness list.
Spilg said taking into account all the evidence he has heard and documentary evidence presented by the state since the missing plea and sentence agreement was first mentioned in September 2016, the copy submitted by the state seems to reflect the correct contents.
He asked why somebody with the standing of Hodes would lie about that under oath.
During their argument, first Bennett and later Porritt accused Spilg of having “already made up your mind”. During Porritt’s argument the court heard that Spilg’s eyes, ears and mind are closed to the accused’s arguments.
This was too much for Spilg and he adjourned the proceedings for a few minutes to give time to Porritt to reflect whether he wanted to apologise or face contempt of court charges.
When the trial resumed, Porritt apologised.
Spilg also invited the accused to add complaints they might have about his conduct “to the list” they will include in the application they plan to bring for his recusal. They fist indicated their intention to bring such an application last year, but have not yet filed anything. Porritt has complained that he cannot work on the application while being incarcerated.
Spilg on Monday repeatedly reminded Porritt and Bennett that the application before him dealt only with the plea and sentence agreement and could not be used for a “fishing expedition” about other documents that are allegedly missing.
He dismissed the application and Porritt started with his cross-examination of Milne.
The trial will continue on Wednesday.
Porritt has been in jail since the middle of last year and Bennett who is out on bail, has been warned to appear on Wednesday.