Tigon: Porritt, Bennett and the ‘Zuma principle’

In dismissing applications from Tigon-accused Gary Porritt and Sue Bennett for his recusal, Judge Brian Spilg raised the possibility of imposing sanctions against litigants and legal teams who increasingly abuse such applications and use them as a legal strategy.

This comes against the background of plans by former president Jacob Zuma to bring an application for the recusal of Deputy Judge President Raymond Zondo as chair of the commission of inquiry into state capture later this month. Zondo has issued summons to compel Zuma to appear.

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Zuma is accusing Zondo of bias against him and failure to disclose family ties between the two. His attorney Eric Mabuza told EWN that Zuma wants the recusal application to be dealt with before appears before the commission.

Zondo has since clarified that he had a child with a woman in the 1990s whose sister married Zuma many years later. It has no bearing on his work at the commission and Zuma has never before raised an objection on this basis when Zondo has presided over his cases, the deputy chief justice stated.

‘Smoke screen’

Constitutional law expert Professor Pierre de Vos has expressed the opinion that Zuma’s plans for a recusal application is a smoke screen to avoid appearing at the commission later this month and to discredit the commission in anticipation of adverse findings against him.

Porritt and Bennett are also notorious for their delaying tactics.

Porritt is former CEO of JSE-listed financial services group Tigon and Bennett a former director. The pair were first arrested in 2002 and 2003 respectively and are facing more than 3 000 charges relating to the collapse of Tigon, including fraud and transgression of the Income Tax Act.

Their trial only started in 2016 after they brought several appeals and applications. Several courts, including the Supreme Court of Appeal, have found that the pair deliberately delayed proceedings.

In March 2018 Judge Ramarumo Monama in fact found that Porritt acts just like Zuma by delaying the trial through applications and appeals “even when there is manifestly no prospect (of success)”. This, he called the “Zuma principle”.

Porritt has been in jail for the last few years after he failed to pitch for a court appearance.

In his latest ruling Spilg said the test for deciding whether a judge should recuse himself, is whether a reasonable, objective and informed person would, on the correct facts, have a reasonable apprehension that the judge has not or will not have an impartial mind that is open to persuasion by the evidence and submissions of counsel.

Impartiality

It is presumed that judges will be impartial. That does not mean absolute neutrality and judges need not be silent umpires. They must to manage the trial effectively and efficiently to finality and ensure that public and private resources are not wasted, Spilg stated.

He found that Porritt and Bennett had indicated as far back as 2016 that they planned to ask for his recusal, but only brought the applications now at the court’s insistence. Their conduct does not show grave concern about his impartiality and should be dismissed, he said.

It is in the interest of justice that recusal applications should be brought speedily, and litigants cannot let the trial run its course until it suits them to bring the application, Spilg said.

The only new matters they raised were Bennett’s concern about an alleged conflict of interest after Spilg’s name appeared on a questionable list of people who allegedly defaulted on their taxes in 2002, and the fact that he read the papers Porritt recently filed in a fresh bail application.

The South African Revenue Service (Sars) is the main complainant in the matter and is funding the prosecution.

Bennett’s legal representative conceded in court that the information on the alleged Sars list was incorrect. This was after Spilg showed his tax assessment for that year to the accused and their legal teams and several Sars officials confirmed that his tax affairs were in order.

Since her apprehension was based on incorrect facts, they did not carry any weight, he found.

Porritt argued that Spilg’s insight in his bail application could compromise his impartiality.

Spilg however said he is fully capable of disabusing his mind. Porritt was delaying his filings in the recusal application, saying he was unable to consult his legal team during the Covid-19 lockdown. When he realised that Porritt had in fact been preparing a substantial bail application, he had to see it to determine the extent of it and whether Porritt had a valid excuse.

Tactic

Spilg said more and more recusal applications are brought as a tactical device or because the litigant does not like the outcome of an interim order made during the course of the trial. “The seeming alacrity with which legal practitioners bring or threaten to bring recusal applications is cause for concern.”

He said the recusal of a presiding officer “should not become standard equipment in a litigant’s arsenal but should be exercised for its true intended objective, which is to secure a fair trial in the interests of justice in order to maintain both the integrity of the courts and the position they ought to hold in the minds of the people who they serve”.

He said that while the right of a litigant to raise the impropriety of a judge’s conduct – and, without fear, seek their recusal – is clear, it may be necessary to consider sanctions in cases where the right to request a recusal has been abused for an ulterior purpose.

Source: moneyweb.co.za