Porritt, Bennett backtrack on Tigon trial boycott

Tigon-accused Gary Porritt and Sue Bennett on Friday reversed their earlier decisions not to  participate further in their criminal trial relating to the 2002 collapse of JSE-listed financial services group Tigon.

Porritt was CEO of Tigon and Bennett a director. They have been on trial since late 2016 on more than 3 000 charges of fraud, racketeering and contravention of the Income Tax Act, the Companies Act and the Stock Exchanges Control Act.

The trial has been moving at a snail’s pace, with the first state witness – their alleged co-conspirator Jack Milne – still being cross-examined. Neither has legal representation and both have been reprimanded continuously by presiding judge Brian Spilg for cross-examining Milne on irrelevant matters and failing to address the charges against them.

On November 19 Spilg even sent Bennett down to the cells for 15 minutes to reconsider her line of questioning. He stated that he would hold an inquiry into possible contempt of court charges relating to her conduct as soon as the record of the proceedings becomes available.

‘Threat of incarceration’

The next day Bennett told the court she could not continue with her cross-examination “in conditions where I have been placed under the threat of incarceration whilst exercising my constitutional right to cross-examine”.

She continued: “This is a decision made under threat. In other words, I am not exercising free will or freedom of choice in making this decision,” adding that she would not continue with the cross-examination.

Lead state prosecutor advocate Etienne Coetzee SC accused Bennett of “just trying to create the record for a subsequent appeal (or) for a subsequent recusal application”.

He said the court did not stop her from cross-examination, it merely stopped her from raising irrelevant issues, as it would with any other accused.

He said she knows very well what is expected of her. The state has given her an advisory on how to cross-examine and she had an opportunity to consult with two advocates before starting with the cross-examination.

In response, Bennett told Spilg: “M’Lord, since I commenced my cross-examination, Your Lordship has continually interrupted me. Yesterday Mr Coetzee continuously interrupted me. I was barely allowed to speak.” She accused the court of gross irregularities.

No intimidation

Spilg denied that she was being intimidated and said he was applying the rules of relevance. He adjourned the trial for a while to give her an opportunity to reconsider her position. However, she persisted, adding once again that her decision not to continue with her cross-examination was taken under threat.

Spilg then said he had to protect the integrity of the court. He said he is unaware of “any previous case where our judicial system has been tested to this degree, by litigants who have, as far as the evidence presented in this court to date shows, elected to conduct their own defence when at least legal aid was available if they were unable to afford their own defence”.

Spilg then told Porritt to continue with his cross-examination of Milne, which was earlier interrupted due to Porritt’s alleged neck injury.

Porritt complained that he was not ready and couldn’t even remember where he last left off with Milne. He said he has however reconsidered his position and is taking the same stand as Bennett – not to continue with the cross-examination of this or any other witness. He said he had been slapped with “hundreds or tens of thousands of rands worth of contempt orders, many of them I really do not understand why”.

Porritt asked for the trial to be postponed so that he and Bennett could prepare an application for Spilg’s recusal. They could file their papers in this regard in February, he said.

Spilg adjourned court for the accused to study the advisory from the state, for Bennett to get legal advice and for both to reconsider their positions.

On Friday and after studying the advisory they told the court that they would indeed proceed with cross-examination of Milne.

Forensic evidence

Spilg then told the state that once Milne’s testimony has been completed he would want to see forensic evidence of how the money flowed from investors to “as far as the state can see”.

He asked whether the state would next call former Tigon auditor Grant Ramsay, Tony Hodgkinson (former financial director of Tigon subsidiary Shawcell), and Milne’s half-brother Dermot Herron.

He directed the state to prepare a document that shows the money flows and how the money was treated in the books of the relevant entities. This should be given to the accused for them to indicate what they will admit.

If they don’t admit the content of the document, the state should lead forensic evidence, Spilg directed.

“This case is not about direct evidence of people, but about cash flow,” Spilg said.

He said this case has had his undivided attention for two years, which is unheard of. It cannot continue like this and the court must work more efficiently, Spilg said.

Next year he will have to hear other cases as well and will be on long leave for two months, Spilg said. He also asked the state to give him an indication to what extent the more than 3 000 charges could be reduced to about 20.

The trial was postponed until December 7.