Tigon-accused Gary Porritt on Monday failed to attack the facts that supported a judgment in 2017 to withdraw his bail. Instead, during the hearing of his appeal against the decision, he attacked trial judge Brian Spilg in an inappropriate manner, the state told a full bench in the High Court in Johannesburg.
The three judges reserved their judgment and Porritt will only later hear whether he will spend another Christmas in jail.
Porritt was the CEO of former JSE-listed financial services company Tigon. He is currently standing trial on more than 3 000 charges of corruption, racketeering and contraventions of the Income Tax Act, the Companies Act, and the Stock Exchange Control Act.
His bail was withdrawn following an inquiry into his failure to appear in court on several occasions in June 2017. He has been in the Johannesburg prison, also known as Sun City, for about 18 months.
At the time he claimed that he fainted several times. He was admitted to hospital more than once and several doctors investigated his condition.
Porritt’s co-accused Sue Bennett is out on a warning.
While Porritt and Bennett are conducting their own defence in the criminal trial, they were represented by attorney Frank Cohen and advocate Willie Vermeulen SC during the appeal proceedings. The state has previously accused Porritt of using legal representation – of the lack thereof – as a legal strategy and rejected the pair’s contention that they don’t have money for lawyers to act on their behalf in the criminal trial.
The judges ruled early on Monday that they would not hear any new evidence.
Vermeulen said the appeal does not turn on the new evidence. He argued that Spilg’s decision was misdirected and based on a flawed process.
He related that Porritt was arrested in 2002 and released shortly thereafter on bail of R1 million. This amount, he said, was later drastically reduced.
He said a finding by the Supreme Court of Appeal in 2011 that both accused did everything in their power to delay the start, and later the continuation, of the trial should be contextualised.
Vermeulen painted a picture of Porritt having an unblemished record of appearing in court when he should and that the trial had been running smoothly, except when Bennett fell ill. “There is no basis for the state to submit that Mr Porritt wanted to frustrate the process [by faking illness].
“Why would he? He didn’t run away. Why would he have delayed?” Vermeulen asked.
He argued that Spilg erred by disallowing the affidavits of a waiter and car guard at the Keg restaurant in Pietermaritzburg who stated that they saw Porritt’s fainting spells on June 9, 2017. He also said it was a mistake of Spilg not to allow Porritt to call a lady friend, Vanessa Pretorius, who was with him that night to testify about the events.
In his heads of argument, Vermeulen accused Spilg of being biased. He said “the entire reasoning of the learned judge is so questionable as, once again, to be suggestive of bias on his part …”
Advocate Etienne Coetzee SC for the state said the attack on Spilg was inappropriate, but to be expected from Porritt who “has no respect for the judiciary including Honourable Justice Spilg.”
He said: “An appellant and a legal representative are not entitled to make allegations of bias on the part of the presiding judge other than in the context of an application for the judge’s recusal.” Despite being invited to do so, Porritt has so far failed to bring such an application.
“When they cannot attack the facts, they attack the judge,” Coetzee said.
Coetzee denied that the trial was running smoothly up to the point that Porritt failed to appear. That submission by Vermeulen is “completely inaccurate”, he said.
He asked the judges to assess Porritt’s conduct holistically. He and Bennett have done everything they could to delay proceedings and continue to do so, he said.
He said Porritt’s attacks came as the trial was about to get back on track following a six-month-long inquiry into Bennett’s fitness to stand trial. Porritt then wanted the matter postponed for several months and when Spilg refused to postpone it, he was upset.
Directly thereafter he allegedly started fainting and failed to appear in court.
Coetzee submitted that Porritt was malingering (faking illness) because he wanted to delay the trial.
He pointed to the notes of two doctors that reflected statements by Porritt to the effect that he wanted their assistance to get an excuse not to attend court on the days he was required to be there.
He urged the judges to watch the video material of his conduct in court on June 22, 2017, when Moneyweb filmed him lying on the court floor allegedly too sick to participate in proceedings and about three hours later when he was walking around in Milpark hospital, unaware that the camera was watching.
They committed to watching the videos (see below).
Judgment was reserved.
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