Tigon trial: Porritt and Bennett stuck with same judge

The Constitutional Court quashed the hopes of Tigon-accused Sue Bennett to get rid of Judge Brian Spilg as presiding officer in the criminal trial of herself and co-accused Gary Porritt when, on Tuesday (1 November), it refused leave to appeal Spilg’s October 2020 decision not to recuse himself.

The pair are facing more than 3 000 charges – including fraud, racketeering and contraventions of the Income Tax Act – related to the collapse of the then listed financial services group Tigon around 2002.

Before the collapse Tigon was considered the best-performing stock on the JSE.

The pair were arrested in 2002 and 2003 respectively, but the trial before Spilg only started late in 2016 after numerous delays – due, among others, to applications and appeals brought by the accused.

This included a failed attempt to get rid of the prosecuting team due to alleged bias. Among other things, the accused objected to prosecutor Advocate Etienne Coetzee SC’s appearance being funded by the South African Revenue Service (Sars).

Second bite

The current trial is the second bite at the apple after Judge Geraldine Borchers in September 2011 recused herself even before the substantive matters were addressed. Business Report at the time reported that she said she’d interacted with Porritt and Bennett so much over this period that she could not trust herself to be impartial.

Both accused are representing themselves, pleading poverty, with Porritt’s family engaging counsel for him from time to time.

Porritt has been incarcerated since June 2017 after he failed to appear in court while on bail.

Bennett’s efforts

In her application of 1 270 pages before Spilg, Bennett advanced several arguments to try to show that Spilg was biased against the accused.

In his ruling against her recusal application, Spilg explained from case law that the test for a recusal is “whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel”.

He further emphasised that the role is “not just a silent umpire and that, while maintaining fairness and impartiality, a judge is responsible for managing a trial to finality both efficiently and effectively”.

Spilg’s efforts

In his management of the trial Spilg has regularly made rulings against the accused for questionable conduct in court, including causing unnecessary delays and talking back to him.

He has however also frequently gone out of his way to explain their rights to them as well as the implications of decisions they make, since they don’t have legal representation.

In his ruling Spilg emphasised that the delay between the time Bennett first accused him of bias and bringing the recusal application is hardly the conduct of an accused with serious apprehension of bias.

“I do not believe that a litigant can be permitted to bide his or her time until well into the case before choosing the moment to actually bring a recusal application,” he said in his ruling.

Bennett further accused him of bias on the basis that he favours Sars, which is partly funding the prosecution. Spilg dismissed this allegation as her apprehension of bias was not based on facts.

Trial drags on …

The first witness for the state – co-conspirator and convicted fraudster Jack Milne – attended court for a full 140 days and so far only three witnesses, including Milne, have completed their testimony.

The other two are forensic auditor Professor Harvey Wainer and Linda MacPhail, who testified about a PwC investigation into Tigon’s financial affairs.

Accountant Grant Ramsey, who turned state witness, has completed his evidence in chief and is currently being cross-examined by Bennett.