Judge Brian Spilg on Wednesday dismissed an application by Tigon-accused Gary Porritt and Sue Bennett to postpone the trial indefinitely for them to prepare an application for Spilg’s recusal.
Porritt and Bennett are standing trial on more than 3 000 charges of fraud and other financial crimes related to the collapse of JSE-listed financial services group Tigon. Porritt was the CEO and Bennett a director.
The beginning of the trial had been delayed by 14 years due to several applications and appeals by the accused. The Supreme Court of Appeal in previous proceedings stated “they intend to employ every stratagem available to them in order to delay the commencement and thereafter continuation of the trial for as long as they possibly can”.
There has been very little progress in the trial this year as first Bennett and then Porritt failed to appear at court due to alleged illness. Spilg ruled that Porritt had no good reason to be absent and revoked his bail. The enquiry into Bennett’s health has been stayed.
Bennett told the court on Wednesday that Spilg is biased and would not grant them a fair trial. She said they need the record of earlier proceedings to prepare an application for Spilg’s recusal and need time to work together on the application.
Porritt is currently being held in the Johannesburg Central prison and Bennett is only allowed to see him for about ten minutes once a week. During such visit they can only communicate through a thick glass panel, she said.
Both accused are unrepresented in the trial and will also be unrepresented when bringing the application.
Porritt has indicated that he will also bring a fresh bail application as well as an application for leave to appeal Spilg’s decision to revoke his bail. In these proceedings he will be represented.
Bennett refused to disclose to Spilg why they decided to forego representation in the recusal application.
Advocate Etienne Coetzee SC for the state accused Porritt and Bennett of using legal representation as a strategy. When it suited their purpose, they were represented, but when they thought it would give them more leeway to act as lay persons, they represent themselves, he said.
Porritt strongly denied this. The accused allege that they don’t have money for legal representation.
Spilg repeatedly reminded Bennett that both accused refused to make use of Legal Aid. They repeatedly failed to disclose the financial detail that Legal Aid requires before granting assistance.
Bennett however stated that Legal Aid would only make available a junior advocate and the representation would be of a low standard.
Spilg said Bennett has no basis for the allegation that Legal Aid would not provide adequate representation. He said she would only be able to assess that once Legal Aid has allocated counsel to the case and would then be able to address it if necessary. He pointed out that it is an election the accused made to forego Legal Aid and that it has consequences.
He cautioned Bennett that there is a limit to the leeway afforded to lay persons.
Coetzee also denied that Legal Aid assistance would be inadequate.
The state opposed the application to postpone the trial and accused Porritt and Bennett of wanting special treatment. He said they are no different from any other awaiting trial accused.
Porritt denied wanting special treatment.
The state argued that Porritt and Bennett can be accommodated with regard to time to work on the application, but stated that the principle of a recusal application is not to troll through the record to find grounds for bias. Perceptions of bias should be raised as and when they arise, he said.
Spilg dismissed the application, but arranged for Porritt to come to court and meet with Bennett on Thursday, even though the trial would only resume on Friday. He directed that they first study the documents the state has submitted in the trial before working on the recusal application.
On Wednesday afternoon the first witness in the main trial, Jack Milne, resumed his testimony. Milne is the former MD of Progressive Systems College Guaranteed Growth (PSCGG). Tigon underwrote PSCGG and investors lost about R160 million when the scheme collapsed. Milne earlier served a term in jail for his role in the scheme. He is now a state witness.
Milne handed up seven documents, which he said showed how Porritt directed the manipulation of the second hand market for PSCGG shares.
During the course of the day Correctional Services notified the court that a sputum sample provided by Porritt that morning showed him to be clear of tuberculosis. This followed after the trial was once again disrupted as he was rushed to hospital on Monday for tests to allay Porritt’s fear that he was suffering from the condition.
The trial will continue on Friday.