Lockdown delays Tigon recusal application

An application by Tigon accused Sue Bennett for the recusal of Judge Brian Spilg, who presides over her and co-accused Gary Porritt’s criminal trial, will probably only be heard after the current Covid-19 restrictions are relaxed to Level 3.

The accused have been frustrated by Spilg’s firm hand on the proceedings as he tries to speed up the trial. He has accused them of “playing the system”.

Porritt was the CEO of listed financial services group Tigon and Bennett a director. The group collapsed around 2002 and the accused were subsequently arrested. They are standing trial on more than 3 000 charges of fraud, racketeering and contraventions of the Income Tax Act, the Companies Act and the Securities Exchange Act.

Bennett first brought the application in October last year. Porritt subsequently brought a similar application. The applications were due to be heard on April 21, but the Covid-19 lockdown has disrupted the operation of courts.

Long wait

Spilg then ordered that the application be heard within 25 court days after the lockdown ends, providing that Porritt, who has been in custody in prison since mid-2017, is allowed to consult with his lawyers. He set down deadlines for the filing of papers.

Both accused are unrepresented in the main trial, but have briefed separate legal teams for the recusal applications.

Moneyweb has confirmed that inmates at the Johannesburg Correctional Centre will however only be allowed to consult under Level 3.

In her reply to the state’s answering affidavit regarding her application, Bennett addresses accusations by advocate Paul Louw, deponent for the state, that her application is aimed at delaying the trial or avoiding addressing its merits.

This conduct is typical of white-collar accused, he stated.

Bennett denies this, saying Louw is no criminologist and “certainly does not have personal knowledge of the workings of my mind”. He is therefore not qualified to express an opinion on this, she says.

She denies trying to “impermissibly delay the criminal trial or to abuse the process of the court”, saying she is entitled to enforce her rights to a fair procedure.

She says even if that were true, it is irrelevant “whether I am a model litigant or a degenerate litigant and whether I want to expedite the criminal trial or delay it”.

The crux of the matter is that she has a reasonable apprehension that Spilg is biased against her, she says and denies “playing litigation games”.

In terms of Spilg’s earlier order, Porritt has to file his replying affidavit within 10 days after the lockdown ends, if he is able to consult with a legal team.

Presumably, that will now translate into 10 days after the country moves to Level 3 restrictions.

High risk

Other factors related to Covid-19 that could impact on the trial include that both accused and Spilg are older than 60 and therefore considered vulnerable to the virus and Bennett will have to travel from Knysna, where she resides, to the High Court in Johannesburg for the hearings.

If she is not permitted to travel, the recusal application might still proceed since she will be represented by her lawyers, but the main trial, where she is unrepresented, cannot proceed in her absence.

She is in fact still busy cross-examining the state’s third witness, forensic auditor Linda MacPhail. MacPhail earlier testified about PwC’s forensic report on Progressive Systems College Guaranteed Growth (PSCGG).

Conspiracy to defraud

PSCGG was an investment fund underwritten by Tigon. Former PSCGG CEO Jack Milne earlier testified that he conspired with Porritt and Bennett to defraud investors from the outset, but the accused both deny this.

According to the PwC report PSCGG is indebted to investors to the tune of R171 million. The report spans transactions from May 17 2000 to May 1 2003 and found that net amounts of R51.1 million flowed from PSCGG to the Awethu Trust, of which Porritt was, according to PwC, a trustee and R104.8 million to EBN, of which Porritt and his wife were the sole directors.

The report quotes Porritt’s testimony at an earlier insolvency hearing, saying all the money paid to these entities (R159.9 million) was used to buy shares in Tigon and Shawcell, a Tigon spin-off company, on behalf of PSCGG.

PwC could however only find proof of R50 million used for that purpose.

According to PwC R78.7 million flowed from Awethu and EBN to Brangus Ranching and R37.9 million to Synergy Management and Finance. Porritt was also a director of both these entities.

When Bennett completes her cross-examination of MacPhail, Porritt will also get an opportunity to test her evidence.