Judge pulls out of Porritt skirmish

Judge pulls out of Porritt skirmish
September 21 2011

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Wiseman Khuzwayo


A South Gauteng High Court judge who was due to hear an unusual application for the recusal of the lead prosecutor in a criminal trial, took both the prosecuting team and the defence by surprise yesterday when she announced that she was recusing herself because she feared she might be biased on the matter.

Judge Geraldine Borchers recused herself from an application in which prominent lawyer Kemp J Kemp, who represented President Jacob Zuma in his rape and corruption trials, would argue that the lead prosecutor, Etienne Coetzee, should recuse himself from the trial of Gary Porritt and Sue Bennett. The duo are charged with defrauding Tigon investors of R150 million.

The trial has been dragging on since January 2006 because of preliminary legal skirmishes. Judge Borchers said the accused had been before her for five and half years.

“The accused and I have interacted at length during this period. I have formed a certain impression at this stage that I will not bring an impartial mind into the matter,” she said.

Gauteng Judge President Bernard Ngoepe will now appoint a new judge to hear the application.

Kemp lodged an application for Coetzee to recuse himself in terms of section 137 of the Criminal Procedure Act, which relates to an irregularity and a recusal on the grounds of appearance and bias. Porritt said in October 2009 that the SA Revenue Service (Sars) was paying Coetzee’s fees, that Coetzee was in private practice, and that Porritt and Bennett believed the agency did not have the mandate to fund the trial.

“We believe he is on a R300 000 retainer per month, which Sars does not have the authority to do. The National Prosecuting Authority (NPA) is the sole authority to conduct prosecutions,” Porritt said.

Coetzee is assisted by NPA member Jan Ferreira. The accused’s application is opposed by Paul Louw, also a senior advocate with the NPA.

Porritt and Bennett, who face 3 160 charges, have delayed the hearing of the substantive issues of the case mainly by pleading penury and applying for legal aid representation after spending R23m on the legal skirmishes.

Porritt said the legal costs had been funded by certain trusts of which he was a discretionary beneficiary. Since then, those trusts had resolved to withdraw their financial support and to distance themselves from the criminal trial.

Legal Aid South Africa required Porritt and Bennett to complete a standard form briefly setting out their financial positions. They declined to do so and their applications were refused.

Legal Aid South Africa succeeded in an appeal at the Supreme Court of Appeal against a decision by Judge Borchers to invoke a provision of the Legal Aid Act that empowers a court to direct that a person be provided with legal representation at state expense after having taken into account the personal circumstances of the person concerned, and the nature and gravity of the charge.

But the Snowden Farm Trust, of which Porritt’s children are the beneficiaries, has undergone a sudden change of mind and is now funding the application to have the prosecutors recuse themselves.

And Kemp, a senior advocate, does not come cheaply, apparently charging R25 000 a day per appearance, at the least.


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Today the Supreme Court of Appeal (SCA) upheld an appeal by the Legal Aid Board (LAB) against a judgment by Borchers J in the Johannesburg High Court that it provide legal aid to Gary Porritt and Sue Bennett who have been indicted together with various companies that they represent on a total of 3 160 fraud charges. Both Porritt and Bennett are on bail. The former's bail was fixed at one million Rand, an amount subsequently reduced to R800 000. And Bennett's bail was fixed in the amount of R100 000.

Although they first appeared before Borchers J during January 2006, the criminal trial proper is yet to get under way. When they initially appeared in the High Court they were legally represented by counsel and an attorney of their choosing. Since May 2007 they have been without legal representation. Until then, they spent some 23 million Rands on various preliminary legal skirmishes. According to Porritt those legal costs were funded by certain trusts of which, as he puts it, he was a discretionary beneficiary. Since then those trusts, so he says, have resolved to withdraw their financial support and to distance themselves from the criminal trial.

They accordingly made application to the LAB for legal representation at State expense. It was required to complete a standard form briefly setting out their financial position. They declined to do so and their applications were accordingly refused by the LAB.

During September 2008, Borchers J decided to invoke the provisions of section 3(b) of the Legal Aid Act that empowers a court to direct the a person be provided with legal representation at state expense after having taken into account the personal circumstances of the person concerned, the nature and gravity of the charge and any other factor which in the opinion of the court should be taken into account. Borchers J directed the LAB to furnish her with a report contemplated by that section and Porritt and Bennett to answer a number of questions pertaining to their personal circumstances.

On the strength of the information that served before her, Borchers J concluded that Porritt and Bennett had shown themselves to be indigent as defined she accordingly directed the LAB to provide each with two practitioners, who were to be remunerated at the maximum fee permitted by the Legal Aid Guide, to represent them in their criminal trial. Later the Judge clarified that all four practitioners to be appointed by the LAB to represent Porritt and Bennett were to be advocates in private practice and not employees of the LAB.

The SCA held that a court undertaking such an enquiry must ask itself two questions: first, would substantial injustice ensure were the accused to proceed to trial without representation and, if so, second, could the costs of that representation be borne by the accused from his or her own resources? The first in this case proved uncontroversial. The criminal trial, if and when it eventually starts is likely to be a complex one. The indictment runs to over 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 trial and that the trial is expected to last in the region of 3 years. Against that backdrop there could hardly be any dispute that Bennett and Porritt will require legal representation and that the trial would be rendered unfair were they to appear in person. For the SCA, the second question proved more troublesome. It accepted that Borchers J, to her credit, was concerned at the delays that had plagued the trial since inception and motivated by a desire that the trial commence and proceed to conclusion as soon as possible. But having analysed their responses to the learned Judge's questions, the SCA concluded that it illustrated a complete lack of candour onthe part of both Bennett and Porritt. The SCA accordingly concluded that Borchers J had been wrong in finding that Bennett and Porritt had shown themselves to be indigent as defined.

The SCA proceeded then to consider whether Borchers J had the power to order the LAB to provide each of the respondents with two advocates in private practice to be remunerated in accordance with the maximum rates permitted by the Legal Aid Tariff. The SCA held that in that regard Borchers J had misconceived the nature and scope of her power and it refused to endorse that order.



http://www.polity.org.za/article/legal-aid-board-v-s-and-others-36309-2010-zasca-112-2010-09-22

Edited by: Creamer Media Reporter