Friday, September 23, 2016
Who are Tigon’s Porritt and Bennett
Who are Tigon’s Porritt and Bennett
September 16, 2016.
During the first week of their long-awaited criminal trial last week Tigon kingpins Gary Porritt and Sue Bennett presented a curious picture.
The two face more than 3 000 counts of fraud, racketeering, and contraventions of the Income Tax Act, Companies Act and Stock Exchange Control Act.
The are unrepresented in the South Gauteng High Court after judge Brian Spilg refused to grant the postponement they requested until March next year, when they said their legal team would be available.
Porritt appeared somewhat confused during the first week of trial, painstakingly making notes, putting up his hand regularly to indicate to prosecutor adv. Etienne Coetzee and Jack Milne who was first on the witness stand, to slow down as he was battling to keep up. At times this almost brought the trial to a halt.
Bennett, sitting to Porritt’s right, created an impression of quiet competence. She was making notes on her laptop, seemed to assist Porritt from time to time, was clearly quick to understand issues and expressed her self efficiently.
The two seemed to be operating as a team. They arrived together, left together and spent lunch together. A photographer remarked that Porritt seemed to be hiding behind Bennett as the lens focused on the pair. Bennett was also the one who tried her luck on Friday morning by informally requesting another postponement. Judge Spilg told her to bring a formal application, which might still follow.
But who are these two people who have avoided trial for a decade and are accused of pulling an unprecedented scam involving two listed companies.
Milne, who earlier pleaded guilty and served eleven months of an effective sentence of five years for the same events that Porritt and Bennett have been called to account for, said during his testimony that he fell “under Mr. Porritt’s spell” after interviewing the then Tigon MD for a column he wrote for Business Report in 1999.
He described Porritt’s “amazing track record”, having grown Tigon’s headline earnings per share by 149% per annum compound over the previous three years. Tigon’s market capitalisation of R3 billion at that stage was clearly impressive.
From Milne’s testimony it was however clear that institutional investors were weary of Tigon, a financial services company.
Milne admitted that: “I was aware that he had a dubious reputation in the financial community”. Milne asked Porritt about it at the time and Porritt explained that this was as a result of Nedbank unexpectedly withdrawing the overdraft facility they allowed him in his farming enterprises and then mismanaging the collection of his harvests, Milne told the court.
Seemingly Milne was satisfied with the explanation at the time, and introduced him to the board of Progressive Systems College (PSC) of which Milne was MD. Tigon later bought 70% of the PSG group and used it as a vehicle for what the state alleges were his fraudulent activities.
Was Porritt therefore a poor farmer out of luck who got up and reinvented himself?
In need of Legal Aid
Fast forward to a in 2010. The Legal Aid Board appealed against a High Court judgement in terms of which it was obliged to provide legal aid to Porritt and Bennett at the state’s expense.
The SCA sets out an intricate web of trusts linked to either Porritt or Bennett or in some cases to both and holding significant assets. It is one of these trusts that Porritt said loaned him the R800 000 bail to keep him out of jail. Bennett paid R100 000 bail, and the proceeds of a bond over a property valued at more than R5 million in Knysna, that she also lives in. The property belongs to a company of which she is the only director.
Both claimed to be indigent – to qualify for legal aid one’s income should be less than R2 000 per month – but refused to give detail about their financial affairs.
The Legal Aid Board argued that they “deliberately structured their affairs in such a way as to facilitate the disposal or concealment of their assets”. The SCA found that they were “deliberately evasive and cagey”.
Porritt, who now seems bewildered by the court process, and Bennett are experienced litigants. Apart from the fact that the pair was not found to be poor and in need of legal aid, they have spent R23 million (paid by one of the trusts) in the previous six years avoiding trial, the SCA found. According to the SCA “they intend to employ every stratagem available to them in order to delay the commencement and thereafter continuation of the trial for as long as they possibly can”.
It would have cost them less to just face the charges.
The trusts, most of which were founded as early as 1993, own several farms in the Southern Drakensberg. The Snowdon Farm Trust, which pays for Porritt’s cell phone as he provides “advisory services” to it, was earlier involved in a dispute with neighbouring farmers after it tried to drive 1 500 cattle over their land. It was according to also planning to build a luxury ski resort on its land.
In April this year on new light shed on Porritt’s operations after the so-called Panama Leaks. M&G wrote: “The leak bolsters the state’s contention that Porritt masterminded an enormous financial racket. It shows that between 1986 until his arrest in 2002, Porritt used the Panama-based law firm Mossack Fonseca to incorporate shell companies on his behalf in jurisdictions that offer a high degree of corporate anonymity. There is no evidence that Bennett had any dealings with Mossack Fonseca.”
It describes Mossack Fonseca’s role as follows: “Mossack Fonseca helps clients shield their identities by providing nominee directors whose names appear on all official documents, as well as secretarial services for interactions with third parties.”
During the first week of the trial Porritt was much more in the spotlight than Bennett. In documents before the court Bennett was described as a founder director of Progressive Systems College Guaranteed Growth Fund (PSCGG), the investment fund at the heart of the scandal and one of the founders of Tigon. She is described as a commodity trader with experience in logistics, treasury and legal functions.
The state contends that she and Porritt acted with a common purpose.
In 2010 the SCA said the following about the criminal trial that has just started “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 3000 witnesses are expected to testify. It is anticipated that approximately one million pages of documentary material will have to be read in preparation for trial. All told the trial is expected to last in the region of three years.”
It is a mammoth task, but when it is eventually concluded there should be no doubt who Porritt and Bennett really are
Still no Porritt trial 12 years on
Crime & Courts / 18 November 2014, 10:25am
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.
Nearly 12 years after being arrested, former Maritzburg College head boy Gary Porritt is no closer to entering the dock. Photo: Simphiwe Mbokazi. Credit: THE MERCURY
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.
Porritt may walk free in fraud trial
Crime & Courts / 30 September 2013, 11:34am
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.
Eleven years after being arrested for 3 160 cases of fraud and racketeering, KZN businessman Gary Porritt has yet to stand trial. Photo: Simphiwe Mbokazi. Credit: The Mercury
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.