Court might consider separating Porritt, Bennett trials

Judge Brian Spilg ordered several medical practitioners from KwaZulu-Natal and the Western Cape to report to the High Court in Johannesburg on March 31 to testify and be cross-examined about accused Sue Bennett’s health and ability to stand trial.

The criminal trial on more than 3 000 charges including fraud of Bennett and co-accused Garry Porritt only got underway in the middle of last year despite them having been arrested in 2002 and 2003.

The charges relate to the collapse of JSE-listed company Tigon and the Progressive Systems College Guaranteed Growth (PSCGG) that was underwritten by Tigon.

The 14-year delay was caused by various applications and appeals brought by the accused. The Supreme Court of Appeal (SCA) at one stage found that “they 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”.

The first witness, former PSCGG MD Jack Milne, has not yet completed his evidence in chief as the trial proceeds at a snail’s pace to accommodate the pace at which the unrepresented Porritt makes notes. Porritt’s extremely slow writing has been a bone of contention during the trial. The state has questioned it as yet another tactic to frustrate the prosecution while Spilg endeavours to balance his obligation to protect Porritt’s fair trial rights while ensuring the proper flow of the trial.

The trial was set to resume on January 31 after the December break, but was postponed when Bennett, who like Porritt was out on bail, failed to appear.

Despite being ordered to present herself and explain her absence, Bennett failed to appear on several further occasions, allegedly due to ill health.

Although Bennett is also unrepresented in the trail, attorney Frank Cohen and advocate Annelene van den Heever represent her with regard to her health issues on a pro bono basis.

Under threat of arrest a frail looking Bennett eventually showed up on March 1, assisted by her daughter who allegedly flew in from Hong Kong that morning, leaving her twin babies behind to come and look after her mother.

Only after a passionate plea from Van den Heever did Spilg refrain from referring Bennett for observation at a state facility.

The court found that the evidence presented by Van den Heever on Bennett’s behalf, as well as a supporting affidavit by Porritt, failed to give a satisfactory explanation for Bennett’s absence from court.

This included an affidavit from Pietermaritzburg psychiatrist Maria Dobreva who stated without giving the basis for her opinion, that Bennett suffers from burnout and major depression. Dobreva advised that Bennett should not be participating in the trial until at least the end of March.

This contradicted an earlier opinion by general practitioner Dr Brink, obtained as a result of a court order, that Bennett was indeed fit to stand trial if she continued treatment for her stress and anxiety.

The evidence presented by Van der Heever also included an affidavit from Porritt, stating that Bennett suffered from high blood pressure and congenital heart disease, which was being aggravated by the stress of the trial and flying from her home in Knysna to court in Johannesburg. He stated that her condition had deteriorated to the extent that her life was being threatened.

Van der Heever said while Bennett doesn’t suffer from a mental illness or a mental defect, the medication she had been prescribed affected her concentration, ability to give instructions and participate in court proceedings.

Spilg stated in a ruling delivered on March 6, that the court had to make sure it had all the facts pertaining to Bennett’s health and ability to stand trial to enable it to direct the further course of the trial. On that day Bennett looked much better, was able to function without assistance and to give instructions to her legal team.

Spilg ordered that Bennett make her medical records available and be examined by Dobreva, Brink and Dr Henning – the psychiatrist in Knysna who treated her before and a cardiologist. These practitioners were ordered to submit complete reports to the court and present themselves at court on March 31 to testify to their findings. The state will have the opportunity to cross-examine them.

The court will then deal with Bennett’s failure to appear in court earlier. It will further determine whether Bennett will be able to participate meaningfully in future court proceedings and if not, whether her inability is temporary or of a more permanent nature.

If Bennett is not able to attend trial, the court will have to decide whether to separate her trial from that of Porritt or resume in her absence.

Cohen and Van den Heever will represent both accused as friends of the court with regard to these matters and they and the state were ordered to prepare argument on the constitutionality of continued court proceedings in the absence of Bennett. The execution of the warrant earlier issued for Bennett’s arrest was further suspended, pending her appearance in court at 10:00 on March 31 and Porritt’s bail was extended to the same date.

As a result of these developments the trial has not progressed since December last year and due to the court recess and number of upcoming holidays little progress is expected in the first half of this year. The trial is expected to run for a further two-and-a-half years.

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