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Durban - More than a decade after being arrested for at least 3 000 cases of fraud, racketeering and other financial offences, KwaZulu-Natal farmer and businessman Gary Porritt has yet to stand trial for his alleged role in one of the country’s biggest investment scandals.
And, if things go his way, the former Maritzburg College head boy could be acquitted of his alleged crimes, in the Tigon/PSC scandal, in which thousands of pensioners and unit trust investors lost at least R160 million.
Porritt was arrested in December 2002, along with his business associate, Sue Bennett, on the instructions of advocate Glynnis Breytenbach of the National Prosecuting Authority.
Police investigators later seized almost 400 000 documents from one of Porritt’s farms in the Swartberg area and from offices in Pietermaritzburg and Joburg.
They were to stand trial in the Johannesburg High Court for 3 160 counts of fraud and contraventions of the Income Tax Act, Companies Act, Stock Exchanges Control Act, Exchange Control Regulations and the Prevention of Organised Crime Act.
But, by 2010, Supreme Court Judge V Ponnan lamented that the case had been plagued by delays and it had become plain that Porritt and Bennett had employed “every legal stratagem available to them” to delay the trial.
Noting that at least R23m had been spent on “preliminary legal skirmishes”, Judge Ponnan observed that the criminal trial was likely to be complex “if and when it eventually starts”.
“The indictment runs to more than 1 400 pages. In excess of 3 000 witnesses are expected to testify. It is anticipated that approximately 1 million pages of documentary material will have to be read in preparation for the trial. All told, the trial is expected to last in the region of three years,” he said.
The criminal trial was delayed again when Judge Geraldine Borchers (who was set to preside over the trial) recused herself in September 2011, after too much “intimate contact” with the pair.
“For five and a half years they have been appearing before me five or six times a year. I have had far more intimate contact with the accused than in other criminal trials… I have formed certain impressions which are unfavourable to some of the parties,” she said.
More recently, Porritt’s and Bennett’s legal team scored another victory from Judge Lucy Mailula, who took the case over from Judge Borchers.
In a judgment last year, Judge Mailula ruled in favour of Porritt and Bennett after they launched an application to recuse trial prosecutors Etienne Coetzee and Jan Ferreira.
Their legal team argued the two prosecutors had no legal title to prosecute and were perceived to be biased.
Coetzee had failed to take a prosecutorial oath, he “lacked independence”, was not “impartial” and had been engaged in “obstructive conduct”.
Ferreira, it was argued, had been actively involved in previous civil litigation against the pair and his conduct created a “perception of bias/partiality”. Coetzee and Ferreira opposed the application.
Judge Mailula finally granted the application for the recusal of both prosecutors, not because of any proven impropriety on their part, but on the basis of “the perception of lack of impartiality” by Porritt and Bennett.
However, she refused to grant the pair an acquittal.
In her view, the State was at liberty to appoint new prosecutors to start afresh.
Now it has emerged that Porritt’s team, headed by advocate Kemp J Kemp, was recently granted leave to appeal against Judge Mailula’s ruling on acquittal, while the NPA was also granted leave to appeal against the recusal of the prosecutors.
Responding to e-mail queries this month from a Durban investor who allegedly lost R80 000 in the Tigon/PSC Guaranteed Growth Fund scandal, NPA spokesman Medupe Simasiku confirmed that the NPA had challenged the recusal of the prosecutors.
Porritt’s team had also challenged Judge Mailula’s ruling not to acquit him and Bennett. Both challenges had now been referred to the Supreme Court of Appeal for a final ruling.
In his e-mail dated September 12, Simasiku commented that even if Porritt and Bennett were granted an acquittal on a point of law, the NPA was still at liberty to begin a fresh prosecution, with fresh prosecutors.
Porritt, for his part, has yet to give his side in open court.
However, in a letter to The Mercury last year, an attorney associated with some of the numerous Porritt family trusts insinuated that the police investigation into Porritt might have been influenced by a relationship between former police commissioner Jackie Selebi and a person who was involved in a commercial dispute with Porritt’s Tigon group.
“Porritt and Bennett have always professed their innocence of any wrongdoing but due to the machinations of the State they have yet to plead to the charges,” wrote attorney Frank Cohen in his capacity representing the trustees of the Snowdon Farm Trust.