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Porritt in urgent bid to get out of jail

Gary Porritt, the 71-year-old former CEO of one-time listed financial services group Tigon, who has been sitting in jail since June 2017 while his criminal trial drags on, has brought an urgent application to win back his freedom.

Porritt and his co-accused and former Tigon director Sue Bennett are facing more than 3 000 charges, including fraud, racketeering and contraventions of the Income Tax Act related to the collapse of Tigon in around 2002.

Before the collapse, Tigon was the best performing stock on the JSE.

Read Moneyweb’s full coverage of the Tigon case here.

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

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

The application

The High Court in Johannesburg will on Friday (9 December) hear Porritt’s habeas corpus application. Habeas corpus is a legal mechanism available to protect detainees against unlawful imprisonment.

Bennett is the second applicant, and the respondent is the state.

They ask the court to:

  • Declare the current wording of sub-sections of Section 67 of the Criminal Procedures Act unconstitutional and therefore unlawful;
  • Order Porritt’s immediate release; and
  • Return the R100 000 bail money he forfeited when he failed to appear in court in June 2017.

Porritt in his founding affidavit places the spotlight firmly on Spilg’s rulings when he ordered the former businessman’s arrest five-and-a-half years ago.

Arrest

At the time Porritt was admitted to a medical facility following unexplained blackouts he experienced, including while dining with a female friend in a restaurant in Pietermaritzburg.

He was arrested at the medical facility and taken in a police vehicle to court in Johannesburg, where Spilg held an enquiry in terms of Section 67 of the Criminal Procedures Act into his failure to attend court.

Following extensive testimony, including from medical doctors who saw him in Pietermaritzburg, Spilg came to the conclusion that Porritt had deliberately avoided appearing in court.

He has been held in the Johannesburg Central Prison ever since and has failed to get his freedom back despite two bail applications, an appeal to a full bench and a subsequent petition for leave to appeal to the Supreme Court.

The Constitutional Court also in November quashed the hopes of Tigon duo to get rid of Spilg as presiding officer in the criminal trial when it refused leave to appeal Spilg’s October 2020 decision not to recuse himself.

In his founding affidavit Porritt argues that his incarceration has placed him in circumstances where he cannot properly prepare for the trial and must rely on Bennett, also a lay person. She is free on a warning and lives in Knysna.

According to Porritt this has rendered his trial unfair and may result in a mistrial.

A ‘non-violent accused who missed a court date’

He complains of the “injustice of a presiding officer holding a summary enquiry resulting in an unlimited and extended imprisonment (as a detainee) for a non-violent accused who missed a court date because he had been suffering from a medical disability which had not yet been diagnosed, and which the medical specialists testified, before the presiding officer needed to be investigated so that he could be appropriately treated and managed”.

Porritt will have to cross several technical hurdles before the merits of his application will be heard.

The state is challenging:

  • The urgency of the matter, arguing that it has been adjudicated by a competent court and therefore may not be pursued further by the same parties;
  • The application itself, saying it is defective due to Porritt’s failure to join the minister of justice and constitutional development in relation to his attack on the Criminal Procedures Act; and
  • For mistakenly joining Bennett as an applicant, as she has no legal standing in the matter.

In a practice note the state says: “The judgment of Mr. Justice Spilg was confirmed by a Full Bench of this division, with specific reference to the manner in which Mr. Justice Spilg held that Section 67 provides for an evidentially burden not a full onus and therefore applied a less stringent test for the First Applicant to satisfy.

“Applications for leave to appeal to both the Supreme Court of Appeal and the President of the Supreme Court of Appeal were unsuccessful.

“The factual matrix in the judgment of Mr. Justice Spilg as confirmed by the Full Bench of this division, can therefore not be disturbed by this Honourable Court. This Honourable Court cannot sit as a court of appeal.”

Wants criminal trial halted for now

In the criminal trial, which Porritt wants to be halted until this new challenge of his has been concluded, 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.

The criminal trial has been postponed to 16 January 2023.


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