Durban - Nearly 12 years after being arrested on more than 3 000 counts of fraud, racketeering and other offences, former Maritzburg College head boy Gary Porritt is no closer to entering the dock - despite a Supreme Court order that he face his long-delayed criminal trial.
The Pietermaritzburg businessman and farmer, and co-accused business partner Susan Bennett have spent more than R23 million in legal costs to avoid trial in connection with the so-called Tigon/PSC investment scandal.
Late last month, the Supreme Court of Appeal dismissed their latest application, seeking to fire the “biased” State prosecution team.
The court ruled that Porritt and Bennett return to the high court to stand trial - but now their legal team has confirmed they will apply for leave to appeal to the Constitutional Court, which is unlikely to hear an appeal until next year.
Porritt was arrested in December 2002, followed by Bennett in March 2003, to face 3 160 charges under the Companies Act, Stock Exchange Control Act and Income Tax Act, as well as fraud and racketeering.
In 2005 police raided Porritt-associated offices and seized nearly 400 000 documents.
Porritt challenged the legality of these seizures and demanded that the documents be returned. Although some were returned later, this legal battle dragged on for two years.
In mid-2007 Porritt and Bennett pleaded poverty and applied for legal aid. Although Judge Geraldine Borchers remarked that neither was indigent, she ordered the Legal Aid Board to supply each with a private advocate and attorney to ensure a fair trial.
The Legal Aid Board appealed to the Supreme Court, arguing that the pair had deliberately structured their affairs in a web to hide their true financial assets.
Judge Visvanathan Ponnan and four fellow Supreme Court judges took a dim view of Porritt’s and Bennett’s poverty plea.
Judge Ponnan recognised that the criminal trial, “if and when it eventually starts”, was likely to be complex and could last three years because it involved at least 3 000 witnesses and thousands of documents.
The judge observed that they would not have needed legal aid if they had made “more pragmatic” use of funds at the outset.
A year later, the trial stalled again, when Judge Borchers recused herself on the basis that she had been in regular contact with Porritt and Bennett for more than five years and had formed “certain impressions” that were unfavourable.
A new judge, Lucy Mailula, was appointed and the trial was scheduled for March 2012, but, just as it was about to start, Porritt’s team, including top advocate Kemp J Kemp, demanded the removal of specialist State advocates Jan Ferreira and Etienne Coetzee.
Judge Mailula granted that wish in November 2012 because Porritt and Bennett perceived them to be biased.
Earlier this year, the battle moved back to the Supreme Court of Appeal after Judge Mailula’s ruling was challenged by the national director of public prosecutions, Sars and other State parties.
In a judgment late last month, Judge Zukisa Tshiqi ordered the immediate reinstatement of trial advocates Coetzee and Ferreira and dismissed assertions that Porritt and Bennett would not get a fair trial if they perceived the prosecutors to be biased.
“There is a fundamental difference between the role and function of a prosecutor, as opposed to those of a magistrate or judge,” said Judge Tshiqi.
In an adversarial criminal justice system, it was inevitable that the prosecutors would be partisan and could be expected to carry out their duties “vigorously and zealously”.
Judge Tshiqi ordered that Porritt and Bennett return to the high court in Joburg to face trial.
Porritt’s attorney, Frank Cohen, confirmed that he was preparing papers for leave to appeal to the Concourt.
“We and our clients are of the respectful view that Judge Tshiqi erred and that her judgment is wrong on the law,” he said.
The Mercury