Judge Brian Spilg has ordered Tigon-accused Sue Bennett (71) to get herself vaccinated against Covid-19 “as soon as she is entitled to be and inform the court accordingly”.
This came as he dismissed an application from her, supported by co-accused Gary Porritt, to have their criminal trial postponed indefinitely.
Porritt and Bennett are facing more than 3 000 counts of fraud, racketeering and transgressions of the Companies Act, the Income Tax Act and the Exchange Control Act relating to the collapse of financial services group Tigon around 2000.
Porritt was CEO and Bennett a director of Tigon. Porritt has been in jail since mid-2017 after he failed to pitch for a court appearance. Bennett is out on a warning and is staying at her house in Knysna.
Prosecution characterised by delays
The pair were arrested in 2002 and 2003 respectively, but the trial only started in 2016 after the accused brought several applications and appeals. Thereafter it progressed at a snail’s pace with only three state witnesses having completed their testimony so far.
The Supreme Court of Appeal found in 2010 that the pair “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”.
Judge Ramarumo Monama found in 2018 that Porritt acts just like former president Jacob Zuma by delaying the trial. “This case has the hallmarks of the Zuma Principle – to drag the case through even when there are manifestly no prospect,” he said.
Bennett told the court during virtual proceedings that attending trial in Johannesburg would put her life in danger.
She is at an age that makes her vulnerable for contracting Covid-19 and has several underlying health conditions exacerbating the risk.
Next state witness
She said virtual hearings are also unsuitable for hearing the testimony of the next state witness, Grant Ramsey, who acted as external auditor for Tigon and related companies.
Ramsey himself stood accused of fraud and contravention of the Income Tax Act years ago in other matters and entered a plea and sentence agreement with the state. He became a state witness against Porritt and Bennett.
He will take the stand on March 11.
Bennett argued that she and Porritt, who are both without legal representation, will be deprived of the opportunity to observe his facial expressions, body language and general demeanor in a virtual hearing.
They are also concerned that Ramsey might be assisted during his testimony by a person or persons who are out of sight of the computer camera and that the two of them won’t be able to exchange notes and support each other as they do when they are both present during hearings in the court room.
Bennett further argued that the trial should be adjourned until superior courts have dealt with any appeal she might lodge against Spilg’s dismissal of her earlier application for his recusal. He has also refused her leave to appeal, but she will petition the Supreme Court of Appeal to reconsider her application.
In dismissing Bennett’s application for a postponement Spilg gave her the option of continuing with virtual hearings rather than going to the court in Johannesburg. She agreed to this.
Spilg ruled that “the presiding judge will if necessary direct the positioning of the camera during Ramsey’s testimony and take precautions to ensure he is not assisted”.
Within a week after they have started cross-examining him, Spilg will “re-evaluate the appropriateness of continuing in a virtual court, having regard to the accused’s fair trial rights”.
Porritt on Sars
This recusal application is partly based on Bennett’s perception of an improper relationship between Spilg and the South African Revenue Service (Sars), which funds the prosecution.
A thin but feisty Porritt during the past week’s hearings remarked that Spilg is “joined by the hip” with Sars. Spilg ordered him to withdraw this statement, but Porritt refused and rather tried to play with words to avoid a clear withdrawal.
Spilg said he would address this conduct as clear contempt of court at a later stage. At the end of the day’s proceedings Porritt then clearly and apparently humbly withdrew the remark and apologised to the court for any offence it might have caused.
He complained bitterly about the difficulty in preparing for court while in jail and the fact that he cannot consult properly with Bennett.
At one stage Spilg had to call him to order for shouting at the judge, and on another occasion when he spoke directly to state advocate Etienne Coetzee SC, Spilg reminded him that he was in court and “not in your boardroom”.
The Hong Kong documents
The court is currently hearing arguments about the admissibility of the so-called Hong Kong documents. These are thousands of documents and some affidavits the state obtained through the assistance of the Hong Kong authorities in terms of a letter of request issued by a magistrate in 2007.
Porritt maintains this process was unlawful.
The Hong Kong documents pertain to the first 14 charges against Porritt and Bennett. The state wants to use them to prove that they acted with a common purpose to unlawfully drive Tigon’s share price up through purported profits masquerading as management fees.
According to the state, through a number of transactions they “created a façade and artificial scheme, with the intended effect that the Tigon group would report profits based on the performance of its own share price which profits would in turn further increase the market price of the shares thereby artificially creating further profits so that the share price would drive the profits which would drive the share price creating an artificial spiral and the reflection of false profits”.
In the process “misrepresentations were made to the Financial Services Board [now the Financial Sector Conduct Authority], the JSE, Tigon shareholders, users of financial information, the Treasury and/or the South African Reserve Bank and the investing public,” the state says.
Arguments will continue on Monday.