Tigon-accused Sue Bennett’s application to have two special entries made into the record of her and co-accused Gary Porritt’s criminal trial has been dismissed. In his ruling, delivered on Tuesday (August 14), judge Brian Spilg explained in detail how he outmanoeuvred the accused to avoid having the court paralysed.
Bennett, a former director of JSE-listed financial services group Tigon, is standing trial on more than 3 000 charges of fraud, racketeering and contraventions of the Companies Act, Income Tax Act and Stock Exchanges Control Act. The matters relate to the collapse of Tigon around 2002, which left a large number of investors out of pocket.
Both accused are unrepresented in the trial, which has the effect of slowing down the proceedings considerably. They argue that they don’t have money to pay legal teams – but the state has disputed this, arguing that Porritt has direct or indirect access to assets worth more than R100 million and uses access to legal representation or the lack thereof as a legal strategy.
Bennett recently brought the application to have the special entries made. This is a mechanism provided for in the Criminal Procedures Act that allows accused persons to have procedural irregularities noted in the court record. Such irregularities could later form the basis of an appeal, should the accused be found guilty.
Read: Bennett wants to report Tigon judge’s ‘irregularities‘
The requirements for a special entry include that the alleged irregularity should not appear in the record, that it should not pertain to rulings by the court and that it should not have resulted in a miscarriage of justice that could result in a conviction or sentence being set aside on appeal.
Spilg dismissed the application on the basis that the proposed special entries did not comply with these requirements.
He nevertheless explained the court’s conduct that Bennett had complained about and, in the process, gave insight into the steps taken by the court to prevent it from being paralysed. The matter relates to questions about Porritt’s ability to get funds for legal representation and the court’s efforts to move the trial along.
Porritt is currently cross-examining Jack Milne, who is the state’s first witness and former CEO of Progressive System College Guaranteed Growth (PSCGG), an investment fund that was underwritten by Tigon.
Milne, who has been on the witness stand for almost a year now, earlier testified that he, Porritt and Bennett had together devised a scheme to defraud investors in PSCGG. Porritt has denied this. Milne earlier entered into a plea and sentence agreement with the state in relation to PSCGG, and has served a term in jail.
Porritt complained to the court that he finds it difficult to prepare for the cross-examination where he is being held (he has been detained at Johannesburg Central Prison, also known as Sun City, since his bail was revoked more than a year ago). He indicated that it could take him another year or two to complete his cross-exmination of Milne.
Spilg however made an order on June 5 to set time limits to the cross-examination.
In her application for a special entry, Bennett accused Spilg of making this order without having the documents he based the decision on before him. That rendered the order irrational and therefore irregular, she argued.
She based this assertion on the fact that Spilg, after making the order, ordered Porritt to supply certain documents pertaining to the Pembroke Trust and the Surrey Development Trust to the court.
These documents might shed light on the possible availability of funds from the trust that could get Porritt legal representation necessary to speed up the trial.
When he dismissed Bennett’s application, Spilg said Porritt initially agreed to provide the trust documents to the court. He said he warned Porritt on May 15 that he would be prepared to make assumptions if the documents were not produced.
By June 4 the court still did not have the documents. Spilg said he therefore prepared a “structured” order that was not final in case the documents were not provided.
On June 5 he was informed that the trust documents would not be provided. “It is evident that Porritt has backtracked from being amenable and capable of providing the documentation, to claiming he has no ability to access them and is not prepared to,” Spilg stated.
He said the court was placed in an awkward position. It had to obtain certainty about Porritt’s ability to engage legal representation, but was not prepared to make assumptions in this regard without the trust documents.
On the other hand it was necessary to give Porritt a clear indication as to whether he has to complete his current cross-examination – and if so, by when.
And in fact Bennett maintained that Spilg could not rule on the time limits for Porritt’s cross-examination unless he had the trust documents in front of him.
Porritt’s claim that he was unable and unwilling to provide the documents would thus boil down to him paralysing the court.
Spilg, however, proceeded to make the prepared order to set time limits on June 5, but provided for Porritt to apply for an extension to the set time limits.
By framing the order in this way, Spilg could provide Porritt with time limits without having seen the trust documents at the time. He said, however, that the documents remain relevant.
“The question of whether Porritt voluntarily elected not to engage legal representation arose pertinently because he had not completed documentation requested by legal aid to enable them to asses if he qualified, and he also blamed the court for not being able to engage counsel of choice despite funds being available,” Spilg said.
Spilg’s order will become final if Porritt fails to bring “the required application motivating an extension to complete the cross-examination of Milne and join the trustees [of the two trusts] and the Legal Aid Board.”