Sue Bennett, the second accused in the Tigon criminal trial, on Monday accused presiding judge Brian Spilg of taking a decision “in advance of receiving the documents he needed to make the decision.”
The accusation was made in support of her application to make two special entries into the record of the trial.
A special entry is a mechanism provided for in the Criminal Procedure Act that allows an accused to have an irregularity in the proceedings relating to their trial recorded. The accused has to apply to have the entry made, and the presiding judge may only refuse such an application on very narrow grounds.
Bennett and her co-accused Gary Porritt are facing more than 3 000 charges of fraud, racketeering and contravention of the Companies Act, Stock Exchanges Control Act and Income Tax Act. The charges relate to the collapse of the JSE-listed financial services company Tigon in about 2002. Porritt was CEO and Bennett a director.
Both are without legal representation in the trial and have stated that they don’t have money to pay lawyers.
Bennett on Monday submitted that Spilg’s demand in June that she and Porritt supply details, including financial details, of two trusts – the Pemboke Trust and the Surrey Development Trust – was irregular.
The refusal of the court to give reasons for the demand was also irregular, Bennett stated.
She contended that Spilg required the documents to support an order that he had already given relating to Spilg’s cross-examination of the state’s first witness, Jack Milne.
Milne is the former CEO of Progressive Systems College Guaranteed Growth (PSCGG), a failed investment fund that was underwritten by Tigon.
Milne has testified that PSCGG was a “scheme” cooked up by him, Porritt and Bennett to defraud investors. Porritt has denied this. Milne earlier entered into a plea and sentence agreement with the state and served a jail term for his role in the events.
Porritt is currently cross-examining Milne and earlier indicated that it might take him another year or two to complete his cross-examination. The court on June 5 made an order to set time limits to Porritt’s cross-examination.
Spilg pointed out that the proceedings could be speeded up considerably if Porritt had legal representation. He ordered Porritt and later Bennett to produce documents relating to the two trusts, which might make funds available for Porritt’s defence.
The state earlier argued that Porritt uses legal representation as a strategy, having access to funds for appeals and applications when it suits him, but pleading poverty and representing himself when it suits him. It also contended that Porritt has direct or indirect access to assets worth more than R100 million.
Bennett said on Monday that Spilg “sought documentary justification for its order after having given its order. In other words, the court’s main reason for its decision appears to have been based on a speculation which it sought to have confirmed by documents obtained ex-post facto [after the fact].”
Spilg asked Bennett whether she expected him to have refrained from making any order limiting the time Porritt was going to spend cross-examining Milne.
He pointed out that he made the order in the knowledge that Porritt also had the option of getting legal representation through Legal Aid, but failed to do so.
Bennett further applied to make an entry that Spilg’s demand that she make all her submissions to court under oath is irregular, and that she is being prejudiced because the state is not required to do the same.
Spilg pointed out that there is a difference between statements and submissions. He said it is clear from the context of the record that he meant statements should be made under oath. “If the transcript says ‘submissions’ it is clearly an error on my part,” he said.
Bennett responded that she finds it difficult to distinguish between statements and submissions.
That is her problem, Spilg said and questioned whether her failure to understand the distinction constitutes an irregularity on the part of the court.
Bennett lastly argued that it was irregular of Spilg to assume that she agrees with whatever Porritt says in court unless she indicates that she disagrees. They are separate accused, each with a right to their own defence, she argued.
Spilg responded that he has repeatedly pointed out that they are separate accused.
Advocate Jan Ferreira for the state responded that special entries are only competent when the alleged irregularity does not appear in the record, which in this case it does.
Special entries are further not allowed with regard to ‘rulings’ of the court. Bennett’s application relates to rulings and should therefore not be considered, Ferreira argued.
He said Bennett did not show that the alleged irregularities led to a miscarriage of justice.
He said the alleged irregularities have nothing to do with the merits of the case, have no prospect of success on appeal, and that Bennett’s application is a frivolous abuse of process.
Spilg will rule on the application on Tuesday. The accused earlier indicated that they would bring an application for his recusal, but have so far failed to do so.
Porritt remains in custody and Bennett, who is on bail, has been remanded until Tuesday.
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