The Constitutional Court quashed the hopes of Tigon-accused Sue Bennett to eliminate Judge Brian Spilg as presiding officer within the prison trial of herself and co-accused Gary Porritt when, on Tuesday (1 November), it refused go away to attraction Spilg’s October 2020 choice to not recuse himself.
The pair are dealing with greater than 3 000 expenses – together with fraud, racketeering and contraventions of the Income Tax Act – associated to the collapse of the then listed monetary providers group Tigon round 2002.
Before the collapse Tigon was thought of the best-performing inventory on the JSE.
The pair had been arrested in 2002 and 2003 respectively, however the trial earlier than Spilg solely began late in 2016 after quite a few delays – due, amongst others, to functions and appeals introduced by the accused.
This included a failed try and eliminate the prosecuting workforce as a consequence of alleged bias. Among different issues, the accused objected to prosecutor Advocate Etienne Coetzee SC’s look being funded by the South African Revenue Service (Sars).
Second chew
The present trial is the second chew on the apple after Judge Geraldine Borchers in September 2011 recused herself even earlier than the substantive issues had been addressed. Business Report on the time reported that she stated she’d interacted with Porritt and Bennett a lot over this era that she couldn’t belief herself to be neutral.
Both accused are representing themselves, pleading poverty, with Porritt’s household partaking counsel for him once in a while.
Porritt has been incarcerated since June 2017 after he failed to seem in courtroom whereas on bail.
Bennett’s efforts
In her software of 1 270 pages earlier than Spilg, Bennett superior a number of arguments to attempt to present that Spilg was biased in opposition to the accused.
In his ruling in opposition to her recusal software, Spilg defined from case regulation that the take a look at 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 additional emphasised that the function 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 administration of the trial Spilg has recurrently made rulings in opposition to the accused for questionable conduct in courtroom, together with inflicting pointless delays and speaking again to him.
He has nevertheless additionally ceaselessly gone out of his method to clarify their rights to them in addition to the implications of choices they make, since they don’t have authorized illustration.
In his ruling Spilg emphasised that the delay between the time Bennett first accused him of bias and bringing the recusal software is hardly the conduct of an accused with critical 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 stated in his ruling.
Bennett additional accused him of bias on the idea that he favours Sars, which is partly funding the prosecution. Spilg dismissed this allegation as her apprehension of bias was not primarily based on information.
Trial drags on …
The first witness for the state – co-conspirator and convicted fraudster Jack Milne – attended courtroom for a full 140 days and thus far solely three witnesses, together with Milne, have accomplished their testimony.
The different two are forensic auditor Professor Harvey Wainer and Linda MacPhail, who testified a few PwC investigation into Tigon’s monetary affairs.
Accountant Grant Ramsey, who turned state witness, has accomplished his proof in chief and is at present being cross-examined by Bennett.