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[2017] ZAGPJHC 202
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S v Porritt and Another (SS40/2006) [2017] ZAGPJHC 202 (21 July 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:   SS 40/2006
Reportable
Of
interest to other judges
Revised.
21
July 2017
THE
STATE
v
PORRITT,
GARY
PATRICK                                                                            Accused

no. 1
BENNETT,
SUSAN
HILARY                                                                            Accused

no. 2
JUDGMENT
OF 21 JULY 2017
ENQUIRY
RE MR PORRITT’S FAILURE TO ATTEND
UNDER
SECTION 67 OF THE CPA
SPILG,
J:
INTRODUCTION
1.
This is an enquiry under
s 67
of the
Criminal Procedure
Act 51 of 1977
as a consequence of Mr Porritt’s failure to
attend court. He failed to attend court on 12 June and on 13, 14, 19,
20 and
21 June which were the subsequent dates set down for the
hearing.  Porritt admitted that these dates had been allocated
for
trial. It is common cause that he was in court when I made the
order that the trial would proceed on each of these dates. It is
also
common cause that he had only be warned to attend on 12 June although
all the other dates had been agreed at the hearing of
5 June by the
State and Bennett and to which the court was amenable. Porritt
however wished the trial to resume only on 1 August.
I rejected his
submissions and made the order of 5 June in the terms which are set
out later.
Unless
otherwise mentioned all references to sections in legislation are to
the
Criminal Procedure Act.
>
2.
There are two orders relevant to Porritt’s
non-attendance in court on the dates referred to earlier.
3.
The first was handed down on 5 June where the following
was made an order of court in the presence of the accused:
1.
The contempt of court hearing
pertaining to Accused 2 be postponed sine die;
2.
Dr  Maria Dobreva is excused
from further attending court;
3.
Dr Henning is excused from further
attending court;
4.
The matter is postponed for
continuation of the trial to 06 June 2017.
5.
The matter shall further continue
on the following agreed dates:
5.1.
06 – 09 June 2017.
Court to adjourn at 13:00 on 09 June 2017.
5.2.
12 – 14 June 2017.
Court to adjourn at 13:00 on 14 June 2017
5.3.
19 – 22 June 2017.
Court to adjourn at 13:00 on 23 June 2017.
5.4.
01 – 04 August 2017.
Court to adjourn at 13:00 on 04 August 2017.
5.5.
7
th
,
8
th
,
10
th
,
and 11
th
August.  Court to adjourn at
13:00 on 11 August 2017.
5.6.
21 – 25 August 2017.
Court to adjourn at 13:00 on 25 August 2017.
5.7.
04 to 08 September 2017. Court to
adjourn at 13:00 on 08 September 2017.
5.8.
11 to 15 September 2017.
Court to adjourn at 13:00 on 15 September 2017.
5.9.
18 to 20 September 2017.
Court to adjourn at 13:00 on 20 September 2017.
5.10.
26 to 28 September 2017.
Court to adjourn at 13:00 on 28 September 2017.
5.11.
02 to 06 October 2017.  Court
to adjourn at 13:00 on 06 October 2017
.
6.
The Accused are to launch any
application pertaining to legal representation and/or other matters
pertaining to the continuation
of the trial on or before 01 August
2017.  The State to file their answering affidavit by 18 August
2017.  The Accused
to reply by 01 September 2017.  Heads of
Argument to be submitted on behalf of the Accused by 08 September
2017.  The
State to submit Heads of Argument by 15 September
2017.  Argument in respect of the said application to be heard
on 05 and
06 October 2017.
4.
Both accused were warned to attend on 12 June and the
consequences of their failure to attend were repeated, as they had
been on
every remand since I was seized of the matter.
5.
The hearing dates through to 6 October were carefully
selected so as to accommodate Bennett and her alleged state of health
without
the need to determine the issue and the non-hearing dates
were constructed around the court’s own availability and made
to
coincide with other part-heards that had already been set down.
The
last paragraph of the order was formulated to ensure that the
continuation of the evidence, at this stage being still the evidence

in chief of Mr Milne, would not be interrupted by any applications
(which would be a parallel process).
6.
The second relevant order was issued on 12 June when
Porritt failed to appear. Bennett implored the court not to issue a
warrant
of arrest and the State acceded, requesting only that a
warrant be authorised but not issued. The order that I was prepared
to
make sought to take into account the possibility that Porritt’s
admission at Mediclinic may be prolonged. This was the court’s

experience when Bennett claimed to have had a medical condition which
was said to be psychiatric related or aggravated by the stress

levels, with or without a pre-existing medical condition, and which
it was said at some stage required continued observation.
The
order of 12 June reads:
1. A warrant for the
arrest (“the warrant”) of Accused no 1, Mr G Porritt, is
authorised
2. Accused no 1
(“Porritt”) is to show cause on Monday, 19 June 2017 at
10 am why the warrant should not be issued and
his bail be estreated.
3. Porritt shall
obtain a written report from Dr Mugabi or a specialist which is to be
forwarded to the parties and the court by
no later than 14h00 on 15
June 2017 with regard to whether or not he is able to attend court on
19 June 2017 and, if not, to provide
a date by when Porritt will be
discharged from hospital and whether there is any medical condition
that precludes him:
a)
from appearing in court on 19 June 2017; or
b)
once in attendance on 19 June 2017, from being able to participate in
the continuation of the trial
and, if applicable,
for how long is it expected that he will be unable to so participate.
7.
The court was obviously concerned about whether Porritt
would remain in hospital through to the following week or any other
permutation
which may result in him not attending court on 19 June.
For this reason the court fashioned the  order in the form it
did
and which it believed would be fair to Porritt while serving the
interests of justice- particularly bearing in mind that no evidence

had been led since December last year because the court was engaged
in establishing why Bennett, who is Porritt’s co-accused,
did
not attend court. This eventually resulted in agreement between the
State and Bennett and after dismissing Porritt’s
objection led
to the previous order of 5 June.
8.
Porritt failed to appear on 19 June. Bennett who had
been warned to appear applied for a postponement until 31 July 2017.
The application
was supported by an affidavit deposed to by her which
went into detail regarding Porritt’s alleged condition. The
application
was dismissed.  It is evident that Bennett had
received Porritt’s backing to bring the application albeit that
it was
only brought in her name.
9.
On 20 June an application
for leave to appeal the order of 19 June
[1]
was brought by both Porritt and Bennett. I notified the parties that
I would hear it on 21 June. Porritt was still in Pietermaritzburg
at
Mediclinic.  The State opposed the application and submitted in
its written heads that the matter was not appealable.
Adv
van den Heever who now represented Porritt conceded the point.
Bennett was in court since she had been warned to attend after
the
previous adjournment. However she was no longer represented by Adv
van den Heever, it being recalled that she was only on a
pro
bono
brief, in terms of the Pretoria
Bar program, to represent Bennett in relation to the enquiry as to
why Bennett was not in court
on 30 January and her related health
issues. Bennett was therefore again acting in her own defence. She
opposed the application
and submitted that certain paragraphs of the
notice of appeal concerned her. The state opposed the application.
After hearing argument
I gave an ex tempore judgment dismissing
Bennett’s application for leave to appeal. That was on the
21
st
.
10.
Porritt was arrested in Pietermaritzburg on the same
day. He was transported to Johannesburg and appeared in court on 22
June. The
matter was postponed to the 23
rd
and Porritt then requested that the
s 67
enquiry be
adjourned to 27 June. The enquiry proceeded on 27 June. It continued
on 28, 29 and 30 June and into the recess, the
court sitting on 4, 5,
7 July and also on Saturday 8 July as I was unavailable the following
week.
11.
Porritt accepted that he would testify first. He was led
in-chief on the 27
th
and
28
th
.  It was
however necessary to intersperse his testimony with that of Dr Mugabi
from Mediclinic Pietermaritzburg on the 29
th
.
This was when Dr Mugabi produced not only his report and records but
also the entire set of original hospital records of Mediclinic
and
the documents of certain other medical practitioners who had attended
on Porritt at Mediclinic in respect of the two periods
that Porritt
was admitted at the clinic; being from 10 to 14 June and again from
20 to 21 June 2017. This was the first time that
the court saw the
hospital records. They had been produced pursuant to a subpoena
duces
tecum
(although the hospital records
per
se
and those of the other treating medical
practitioners were not pertinently identified; only Dr Mugabi’s
records).
12.
All these records were accepted into evidence as
exhibits in the series B to H and were admitted as being what they
purported to
be. They were relied on by both parties; Porritt being
asked to deal with their contents during his evidence.
The
records brought by Dr Mugabi were admitted as exhibits in the series
B to H.  Until then only the documents that Bennett
had attached
to her affidavit or which were previously received had been produced
in court under exhibit A while some additional
documents had already
been placed in the exhibit B series.
Dr
Mugabi then testified after Porritt had completed his
evidence-in-chief. Dr Pillay was also interspersed.
13.
Dr Mugabi together with Dr Pillay and Dr Brown had been
subpoenaed
duces tecum
by
the court under
s 67(3).
However Dr Brown was oversees and in the end
was not called; the decision was taken after both parties advised
that they did not
wish to call her. The court considered it
unnecessary to call her having regard to the evidence already before
the court at that
time and the delay if she was to be called, which
could only be sometime later upon her return from oversees.
14.
Aside from his own testimony, Porritt sought to rely on
two affidavits which were handed up, one by Mr Heenen, a car guard at
the
pub where Porritt alleged he had his blackouts on 9 June. The
affidavit was deposed to on 22 June. The other was the affidavit of

Ms Govender a waitress at that pub.  Her affidavit was deposed
to on 20 June.
THE
LAW
15.
Section 67
reads
as follows:
Failure of accused
on bail to appear
(1) If an accused who
is released on bail-
(a) fails to appear at
the place and on the date and at the time-
(i)
appointed for his trial; or
(ii)
to which the proceedings relating to the offence in respect of which
the accused is released on bail are adjourned; or
(b) fails to remain in
attendance at such trial or at such proceedings,
the court before which
the matter is pending shall declare the bail provisionally cancelled
and the bail money provisionally forfeited
to the State, and issue a
warrant for the arrest of the accused.
(2) (a) If the accused
appears before court within fourteen days of the issue under
subsection (1) of the warrant of arrest, the
court shall confirm the
provisional cancellation of the bail and the provisional forfeiture
of the bail money, unless the accused
satisfies the court that his
failure under subsection (1) to appear or to remain in attendance was
not due to fault on his part.
(b) If the accused
satisfies the court that his failure was not due to fault on his
part, the provisional cancellation of the bail
and the provisional
forfeiture of the bail money shall lapse.
(c) If the accused
does not appear before court within fourteen days of the issue under
subsection (1) of the warrant of arrest
or within such extended
period as the court may on good cause determine, the provisional
cancellation of the bail and the provisional
forfeiture of the bail
money shall become final.
(3) The court may
receive such evidence as it may consider necessary to satisfy itself
that the accused has under subsection (1)
failed to appear or failed
to remain in attendance, and such evidence shall be recorded.
16.
It is evident from Porritt’s bail conditions that
s 66
does not apply because none of the bail conditions required
Porritt to attend court on the dates set down for hearing. It is also

to be noted that
s 66
can only be triggered if the prosecution makes
the application. This is understandable if regard is had to the
general conditions
that are imposed when an accused is released on
bail, since the failure to meet those conditions does not occur in
the presence
of the presiding officer.
17.
This court is concerned with Porritt’s failure to
appear in court on the date to which the proceedings relating to the
offence
were adjourned. It is common cause that he was warned to
appear on that date and that he failed to do so.
One
of the questions which must be considered is whether
s 67
(1) (a)
(ii) requires that the accused be warned to appear, and if so whether
the warning is for a specific date or whether “
the
date … to which the proceedings … are adjourned
”
includes every date which the court has ordered that the
matter will be heard and not necessarily the first of those dates. A
further
issue that may arise is whether
s 67
(1) (a) is intended to
refer to only the first day that trial proceedings are to commence;
being the date when the accused is usually
brought to court and is
required to plead under
s 105
as read with
s 106
(subject of course
to the special provisions under
ss 77
,
85
and
105A
).
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18.
The constitutionality of
s 67
has not been determined.
However the case of an accused who is released on warning in lieu of
bail under
s 72
, and who fails to attend court on the designated date
after being warned to do so, has been.
19.
In
S v Singo
[2002] ZACC 10
;
2002
(2) SACR 160
(CC) at para 39, read with point 3 of the order at para
44, the court held that in order to save
s 72
(4) from constitutional
invalidity it was necessary to read into the section a requirement
which had due regard to the nature of
the criminal sanction that
would be imposed on the accused. In order to appreciate the
significance of
s 72(4)
in regard to the argument presented by the
State  it is necessary to set out the relevant provisions of
s
72
as a whole:
Accused may be
released on warning in lieu of bail
(1)
Subject to
section 4
(2) of the
Child Justice Act,
2008
, if an accused who is eighteen years or older is in custody in
respect of any offence and a police official or a court may in
respect
of such offence release the accused on bail under
section 59
or
60
, as the case may be, such police official or such court, as the
case may be, may, in lieu of bail and if the offence is not, in
the
case of such police official, an offence referred to in
Part II
or
Part III
of Schedule 2-
(a)
release the accused from custody and warn him to
appear before a specified court at a specified time on a specified
date in connection
with such offence or, as the case may be, to
remain in attendance at the proceedings relating to the offence in
question, and the
said court may, at the time of such release or at
any time thereafter, impose any condition referred to in
section 62
in connection with such release.
(2) (a) An accused who
is released under subsection (1) (a) and who fails to appear or, as
the case may be, to remain in attendance
at the proceedings in
accordance with a warning under that paragraph, or who fails to
comply with a condition imposed under subsection
(1) (a), shall be
guilty of an offence and liable to the punishment prescribed under
subsection (4).
......
(4) The court may, if
satisfied that an accused referred to in subsection (2) (a) …,
was duly warned in terms of paragraph
(a) or, as the case may be,
paragraph (b) of subsection (1), and that such accused or such person
has failed to comply with such
warning or to comply with a condition
imposed, issue a warrant for his arrest, and may, when he is brought
before the court, in
a summary manner enquire into his failure and,
unless such accused or such person satisfies the court that his
failure was not
due to fault on his part, sentence him to a fine not
exceeding R300 or to imprisonment for a period not exceeding three
months.
20.
There has been some legal writing on whether
Singo
also applies to
s 67.
In Du Toit et al
Commentary on the
Criminal Procedure Act
the
view is that:
“
The reverse
onus provision contained in
s 67(2)
is probably unconstitutional.
It might on constitutional grounds be necessary to interpret
s 67
(2)
as containing a mere burden of rebuttal.”
[2]
21.
Hiemstra’s
Criminal
Procedure
is more ambivalent:
“
It is arguable
that the burden now, in the light of constitutional norms, has to be
interpreted restrictively as merely a duty of
rebuttal, by analogy
with the view of the majority in S v Manamela
[2000] ZACC 5
;
2000 (5) BCLR 491
(CC),
2000 (3) SA 1
(CC).
On the other hand it
can be argued with more conviction that one is here not concerned
with the presumption of innocence and the
risk of a guilty finding
despite the existence of reasonable doubt; one is concerned with an
interim arrangement.  All the
information about non-appearance
falls within the accused’s knowledge.”
[3]
22.
I would prefer to take a more cautious approach. My
concern relates more to the consequence of the deprivation of liberty
that arises
if a court is not satisfied under
s 67
that an accused
fails to satisfy the court that the failure to appear was not due to
his or her fault. While Hiemstra focuses on
categorising the nature
of the sanction being a criminal conviction as the potentially more
attractive argument I would suggest
that it is the consequence of
failing to do so that should inform a court.
The
substance of the enquiry is to determine whether or not an accused
should be held in custody as an awaiting trial prisoner as
a
consequence of having his or her bail withdrawn. Incarceration,
whatever its form amounts to an institutionalised deprivation
of
liberty (and I am alive to the fact that it remains open for the
accused to reapply for bail).
If
one has regard to the provisions of
s 72
read in the context of the
only situations in which an accused may be released from custody
either by a court or a police official
then it appears that
s 72
should be construed as the legislature’s attempt to deal with
the case of a release on warning in contradistinction to a
release on
bail. It appears that the substance of both sections seeks to deal
with the consequence of a failure to appear in court
by an accused
who has been released from custody.
23.
Adv. Coetzee
for
the State submits that the provisions of
s 67
(2) (a) are
distinguishable from
s72
(4) based on the second argument raised in
Hiemstra; namely that the former does not result in a conviction and
therefore the presumption
of innocence and the right to remain silent
are not applicable. I accept that
Singo
confined
itself to evaluating
s 72
against these constitutionally protected
rights
[4]
. Nonetheless the key
extracts of the judgement which deal with the purpose of
s 72
and the
consequences of a failure to attend court (both from the perspective
of the due administration of justice and the sanction
resulting from
a failure to attend court) in my respectful view support applying the
rationale underlying
Singo
to the constitutionally
protected right under
s 12(1)
(which itself secures the enjoyment of
most of the other rights) and also under
s 35(1)
(f)
[5]
.
24.
It would also impact on the protected right under s
35(1)(e) of the Constitution (the right “
at
the first court appearance after being arrested, to be charged or to
be informed of the reason for the detention to continue,
or to be
released”
)  and on an application
of a holistic and purposive approach to interpreting the sub-paras of
s 35 as instances of the broader
rights, based on the presumption of
innocence, afforded a person once arrested to be released pending the
outcome of the case.
This
would also be consistent with the provisions of s 60 which provide
that bail should be granted unless the interests of
justice
indicate otherwise (pursuant to the first significant amendment
passed in 1995 in order for the section to comply with
s 25 (2) (d)
of the Interim Constitution). The corollary must necessarily be that
bail should only be withdrawn if the interests
of justice require it
and in  considering this question it is necessary to have regard
to the accused’s right to his
or her personal freedom.
While
I accept that s 60(11), which relates to an accused who is facing a
Schedule 5 or 6 offence, places a burden on the accused
to adduce
evidence the onus is discharged on a balance of probabilities. In
S
v Dlamini; S v Dladla and others; S v Joubert; S v Schietekat
(1999)
SA 6
(CC)
the Constitutional Court held that
the provisions of s 36 saved subsection (11) from constitutional
invalidity since the curtailment
of the right to be released on
detention was justified. I would prefer to adopt a cautious approach
in the present case.
25.
Accordingly I believe that the following extracts from
Singo
should be
applied when interpreting s 67;
“
[33] The
importance of effectively prosecuting conduct that hinders the
administration of justice cannot be gainsaid. Failure to
appear in
court manifestly hinders the administration of justice. It has the
potential to undermine it too. This may well result
in the public
losing confidence in the system of criminal justice. The ensuing
consequences may be far-reaching. The State's effort
to fight crime
would be undermined and the public may well take the law into their
hands. It is therefore essential that courts
be equipped with the
power to deal effectively with any conduct that threatens the smooth
running of the administration of justice.
In this respect the
impugned provision pursues a pressing social purpose.
[34] The purpose
behind the provisions of s 72 is to facilitate the release of accused
persons, including youthful ones. The further
purpose is to induce,
by way of criminal sanction, the accused who has been so released to
obey the warning and to stand trial.
As regards guardians of youthful
accused persons, the purpose is to induce them to obey the warning
and to ensure that the youthful
accused does likewise. If the
praiseworthy purpose of s 72(1) is not to be abused and if the smooth
functioning of the courts is
to be ensured and their disruption,
which so often leads to injustice of another kind is to be avoided,
the effectiveness of the
sanction is crucial. By the same token, the
procedure for imposing the sanction must be effective. In order to be
effective and
to avoid the very delay and disruption which the
sanction is intended to prevent in the first place, the enquiry must
be simple,
flexible and speedy. This is achieved by authorising a
summary enquiry in s 72(4).
[35] The limitation to
the rights of a fair trial serve the public interest in two important
respects: First, it enables an accused
to be released from custody
without bail pending his or her trial. This advances the human
dignity and freedom of accused persons.
It is further in the public
interest that persons who abuse the benefit be dealt with swiftly and
effectively. Second, the summary
enquiry further serves the purpose
of dealing with conduct which strikes at the very authority of the
courts. By its nature, disobedience
to a warning hinders the smooth
running of the court's trial process. In order to ensure the proper
administration of justice,
such conduct must be dealt with swiftly
and effectively.
[36] It is also
important to bear in mind that the reason for failure to appear in
court is ordinarily solely within the knowledge
of the accused. It
would be unfair to expect the State to establish this fact.
Reasonable presumptions are required to assist in
the effective
prosecution of conduct that threatens the administration of justice.
Indeed in S v Zuma the Court observed that:
'Some [presumptions]
may be justifiable as being rational in themselves, requiring an
accused person to prove only facts to which
he or she has easy
access, and which it would be unreasonable to expect H  the
prosecution to disprove. Or there may be presumptions
which are
necessary if certain offences are to be effectively prosecuted, and
the State is able to show that for good reason it
cannot be expected
to produce the evidence itself.'
[37] Having regard to
the importance of dealing effectively with conduct that hampers the
administration of justice, the incursion
into the right to silence is
justifiable in the present case. But the same cannot be said of the
legal burden which requires a
conviction despite the existence of a
reasonable doubt.
[38] Section 72(4)
also limits the right to be presumed innocent. As the Court observed
in S v Zuma, these rights 'are fundamental
to our concepts of justice
and forensic fairness.'  Our conception of justice and forensic
fairness demands that an accused
person be presumed innocent until
proved guilty and that the State be required to establish his or her
guilt beyond a reasonable
doubt. Section 72(4) demands the opposite.
It presumes the accused guilty and it requires the accused to
establish his or her innocence
on a balance of probabilities. It
carries a risk that an innocent person may be sent to jail. That this
may be a rare occurrence
matters not. Once it is established that
such a risk exists, a fundamental principle of our criminal justice
system has been offended.
[39] It is true that
the section requires the accused to prove only those facts which are
within his or her knowledge. However,
it is one thing to require the
accused to produce evidence that raises a reasonable doubt but quite
another to require the accused
to establish his or her innocence on a
balance of probabilities, and if he or she fails to do so, to convict
the accused despite
the existence of reasonable doubt. There are no
particular circumstances here which suggest that the State cannot
achieve its objective
by imposing merely an evidentiary burden. That
burden, while requiring the accused to prove facts to which he or she
has access,
is also faithful to the presumption of innocence. The
imposition of such a burden would equally furnish the reason for
failure
to appear in court.
[40] Having regard to
the importance of the right to be presumed innocent in our criminal
justice system and the fact that the State
could have achieved its
objective by using less intrusive means, the imposition of the legal
burden upon an accused has a disproportional
impact on the right in
question. In these circumstances the risk of convicting an innocent
person is too high. It outweighs the
other considerations in favour
of the limitation. There are no compelling societal reasons in this
particular case that will justify
imposing this legal burden on the
accused. I conclude therefore that the limitation is not justified.
Appropriate remedy
[41] In considering
the appropriate remedy it is important to bear in mind the following
considerations. First, s 72(4) pursues
a pressing social concern. It
is aimed at preventing conduct that hinders or threatens to hinder
the administration of justice.
Second, the section only requires the
accused to establish facts which he or she knows. Third, if the
offending phrase were to
be struck down, there would be no means of
dealing with the kind of case that is before us. Fourth, the State
can equally achieve
its objective by the imposition of an evidentiary
burden on the accused to raise a reasonable doubt. In these
circumstances striking
down the offending phrase in s 72(4) without
more, is not an appropriate remedy. Some other remedy is called for.
[42] The authority of
this Court to read in words in a statute as appropriate relief is now
settled. “
26.
In my respectful view the parallels are evident as is
the purpose of a provision such as s 72. It is for these reasons that
I have
quoted extensively from the judgment. I have also done so
because Ncgobo J (at the time) spelt out the store the courts place
on
the smooth running of the administration of justice and how it is
impacted if an accused fails to attend court on the trial date.
27.
Applying
Singo
,
s 67(2)(a) will therefore be read as follows;
“
The court shall
confirm the provisional cancellation of the bail and the provisional
forfeiture of the bail money unless the accused
satisfies the court
that
there
is a reasonable possibility that
his failure…
to appear or to remain in attendance was not due to fault on his
part.”
Similarly
s67 (2) (b) will read;
“
If the accused
satisfies the court that
there
is a reasonable possibility that
his failure was
not due to fault on his part, the provisional cancellation of the
bail and provisional forfeiture of the bail shall
lapse.”
The
added words are underlined.
28.
Accordingly while the accused may wish to exercise a
right to silence he or she must nonetheless “
produce
evidence that raises a reasonable doubt
”
that
the failure to appear was not due to his or her fault.
29.
As to the meaning of “
fault
”
In
Savoi and Others v National Director of Public
Prosecutions and Another
2014 (5) SA 317
(CC) the Constitutional Court said at paras 86 and 87;
“
[86] The
general rule of our common law is that criminal liability does not
attach if there is no fault or blameworthy state of
mind. This is
expressed by the maxim: actus non facit reum nisi mens sit rea (an
act is not unlawful unless there is a guilty mind).
The fault element
may take the form of either intention or negligence. This is true of
both common law and statutory offences.
Thus a statute creating a
criminal offence cannot be invalidated simply on the ground that it
identifies negligence for the fault
element. That is a choice that
lies within the purview of the legislature's competence, and
parliament must be given the necessary
leeway. Of course, that does
not mean the legislature is given free rein to choose the negligence
standard as it pleases and under
whatever circumstances — not
in a constitutional democracy like ours. Pronouncing both on the need
for flexibility and the
constitutional curb, O'Regan J said in
Coetzee:
'(T) he appropriate
form of culpability may well be affected by the nature of criminal
prohibition as well as other factors. In
addition, it should be borne
in mind that significant leeway ought to be afforded to the
Legislature to determine the appropriate
level of culpability that
should attach to any particular unlawful conduct to render it
criminal. It is only when the Legislature
has clearly abandoned any
requirement of culpability, or when it has established a level of
culpability manifestly inappropriate
to the unlawful conduct or
potential sentence in question, that a provision may be subject to
successful constitutional challenge.'
30.
It also appears that s 67 has in mind culpability in the
form of intent and not negligence.
In
this regard I refer to
S v Coetzee and others
[1997] ZACC 2
;
1997 (3) SA 527
(CC) where O’Regan J said at paras 162:
“
I turn then to
a consideration of s 11. The general principle of our common law is
that criminal liability arises only where there
has been unlawful
conduct and blameworthiness or fault (the actus reus and mens rea).
This principle is ordinarily expressed in
the Latin maxims actus non
facit reum nisi mens sit rea and nulla poena sine culpa. At common
law, the fault requirement is generally
met by proof of intent
(dolus) in one of its recognised forms, and, in rare circumstances,
by the objective requirement of negligence
(culpa). …. As
Kentridge AJ has mentioned in para [94] of his judgment, the
requirement of fault or culpability is an important
part of criminal
liability in our law. This requirement is not an incidental aspect of
our law relating to crime and punishment,
it lies at its heart. The
State's right to punish criminal conduct rests on the notion that
culpable criminal conduct is blameworthy
and merits punishment. This
principle has been acknowledged by our Courts on countless occasions.
For example, in R v Wunderlich
1912 TPD 1118
, De Villiers JP held
that:
'There is no doubt
that as a general rule a person is not criminally liable unless he
has what is called mens rea. This is usually
expressed by the maxim:
actus non facit reum nisi mens sit rea. This is a sound rule, for a
person is not to be subjected to the
stigma and other consequences of
a crime unless he had what is sometimes called a guilty mind. And
from this it follows that in
general a person is not criminally
liable for an act or omission, unless he himself has committed or
omitted the act or has authorised
it.'
(At 1121…)
31.
In the context of s 67 I believe that the requirement of
fault resulting in the cancellation of bail and forfeiture of the
bail
money will arise in the circumstances of this case if;
a.
Porritt
fails to satisfy the court that his non-appearance was not due to
circumstances which reasonably prevented him from appearing;
and
b.
the
court is satisfied that he intended  to avoid attending court
for the purpose of frustrating the case from either continuing
or
being postponed to another suitable date.
While
this may overstate the position I would prefer to give Porritt the
benefit of such a broad interpretation.
32.
The interpretation of a number of other words contained
in s 67 has been raised in argument by both counsel. They include the
meaning
to be given to the phrase “
appointed
for his trial
”
in s 67(1)(a)(i),
the words “
on the date… to which
the proceedings… are adjourned”
in
subsection (a)(ii), the words “
fails to
remain in attendance…at such proceedings”
in
s 67(1)(b) and the word ”
satisfy”
in s 67(2)(a).
33.
The State argued that s 67 provides for three
alternative situations, namely; a failure to appear on the date
appointed for the
trial, on a date to which proceedings are adjourned
and a failure to remain in attendance.
34.
It was further argued that the word “
appointed
”
has the following dictionary meaning:
“
...to determine
by authority or agreement, fix, set
…
determine or
decide on (a time or place), decree ”
Adv.
Coetzee relies on the Oxford South African Concise Dictionary (2
nd
ed) 52 and also the website
www.dictionary.com/browse/appointed.
35.
The State also relies on the Afrikaans version of s 67
since it was signed into law by the then State President and is
therefore
decisive for purposes of interpretation.
The
significant phrase in s 67(2)(a) is:
“
tensy die
beskuldigde die hof oortuig dat sy versuim om ingevolge subartikel
(1) om te versuim of aanwesig te bly nie te wyte was
aan skuld aan sy
kant nie”
Adv
Coetzee argues that the word “
skuld”
includes
dolus
and
culpa
and that fault
in this context includes an intentional or deliberate decision not to
appear (
dolus)
as well
as
culpa
levissima
(negligence arising from the slightest negligence).
He
also points out that  “
bepaal”
means “
vasstel, noukeurig
aangee (betekenis van ‘n woord) deur ondersoek vasstel; beslis
nader omskryf; (taalk.) hom beperk tot,
vestig op”
and refers to
Verklarende
Afrikaanse Woordeboek
(5
th
)
2
nd
column at p 66
36.
In my view there is an overarching provision governing
bail under Chapter 9 of the CPA  that does not find a
counterpart under
Chapter 10, which deals with an accused who is
released on a warning under s72. Section 58 is an umbrella provision
which, in its
terms, expressly governs all the sections relating to
bail. It provides:
“
Effect of
bail
The effect of bail
granted in terms of the succeeding provisions is that an accused who
is in custody shall be released from custody
upon payment of, or the
furnishing of a guarantee to pay, the sum of money determined for his
bail,
and that he shall appear at the place and on the date and at
the time appointed for his trial or to which the proceedings relating

to the offence in respect of which the accused is released on bail
are adjourned
, and that the release shall, unless sooner
terminated under the said provisions, endure until a verdict is given
by a court in
respect of the charge to which the offence in question
relates, or, where sentence is not imposed forthwith after verdict
and the
court in question extends bail, until sentence is imposed:
Provided that where a court convicts an accused of an offence
contemplated
in Schedule 5 or 6, the court shall, in considering the
question whether the accused's bail should be extended, apply the
provisions
of section 60 (11) (a) or (b), as the case may be, and the
court shall take into account-
(a) the fact that the
accused has been convicted of that offence; and
(b) the likely
sentence which the court might impose.”
(emphasis added)
37.
The legislature has expressly required through s 58 that
all the sections within Chapter 9 are to be read as incorporating its
provision.
In short; there is no requirement that an accused on bail
must be warned to appear provided the court has directed the date or
dates on which the trial will commence or continue. This
interpretation is reinforced by the exclusion of the requirement of a
warning which is a necessary precondition to an enquiry under s 72.
38.
The release of an accused
under s 72 is intended to be confined to a person who has committed
what may be described as a “
non-serious
”
offence and presumably is
a matter confined to a day’s hearing at a time. If s 67 is to
be interpreted to require the accused
to be warned for each day that
the court orders a matter to be set down for hearing then two things
will follow: Either the court
cannot continue with the current
practice of only authorising or issuing but not executing a warrant
of arrest for non- appearance
[6]
or else the court must warn the accused prior to the next set of
hearings that have been ordered to appear on each of the days
that
have been set down, which in this case would have required a warning
for the whole set of dates that were ordered at the hearing
of 5
June.
This
would create a problem if there was some inability to commence on any
of the days, as it would be necessary to undo the warning
or issue a
warning subject to the possibility that the matter may not proceed,
in which case the accused would be informed in some
way or another.
However this in turn would negate the clear wording of s 58.
39.
In my view, unlike s 72,
for s 67 to be triggered an accused  must have been properly
notified of the date or dates to which
a case has been remanded, and
by reason also of s 58, no warning need be given or repeated
[7]
.
In the present case notification was by way of an order given in open
court in the presence of the accused.
40.
For the purposes of this case I will deal with the
matter at two levels.   Firstly on the basis that my view
is incorrect
and that s 67 can only apply in respect of the failure
to appear in court on 12 June.  The other will be on the basis
that
the interpretation I have adopted is correct.
41.
In
Singo
the
court did not consider it necessary to tamper with the phrase “
the
accused satisfies the court
”
. In its
context
Singo
would
therefore indicate that there remains
an
evidential burden on the accused to satisfy the court that there is a
reasonable possibility that the failure to appear or remain
in
attendance was not due to his or her fault.
42.
It appears that in applying
Singo
the accused must demonstrate a lack of
culpability which, depending on the circumstances that resulted in
the failure to attend,
will either mean the absence of an intention
to deliberately avoid being in court when in the circumstances there
is no reasonable
explanation for such failure, or that there is a
reasonable possibility that there can be no blame attributed to the
accused for
not being in court.
While
there may be a degree of overlapping, the former covers the case of
involuntary incapacity where the accused has no say or
exerts
influence which leads to the inability relied upon. The case of a
motor accident which renders the accused physically incapacitated
on
the trial date would be one in point.
The
latter case, although also covering an unanticipated event, involves
a  conscious choice made by the accused not to attend
court, or
whose conscious acts influence the decisions of others. It arises
where the accused takes decisions, after weighing competing

considerations,  which  in all the circumstances amounts to
an explanation from which the reasonable possibility arises
that the
failure to appear was not due to fault on his or her part.
Moreover
a court would be adopting an unacceptable armchair approach if it
were to simply replace its own view of what is reasonable
conduct in
the circumstances; the context in which the words “
a
reasonable possibility
”
have been
inserted by
Singo
,
into a reading of the section indicates as much.
43.
It is interesting to note that in
Pillay
v Krishna and Another
1946 AD 946
at 952-953
the court in referring to onus said that in its true and original
sense it means;
“…
the
duty which is cast on a particular litigant , in order to be
successful, of finally satisfying the court, that he is entitled
to
succeed on his claim, or defence, as the case may be, and not in the
sense merely of his duty to adduce evidence to combat a
prima facie
case if his opponent.”
44.
This case was referred to in the majority judgement of
Brooks and Another v National Director of
Public Prosecution
2017 (1) SACR 701
(SCA) at
para 75 against footnote 92. This is particularly relevant where, as
stated in
Singo
the
facts that are relevant in a s72 enquiry (and by necessary
application a s 67 enquiry) would be peculiarly within the knowledge

of accused if not entirely a matter that concerns a determination of
the accused’s state of mind. Regard should also be had

generally to
S v
Manamela
[2000] ZACC 5
;
2000 (1) SACR 414
(CC).
45.
In
S
v Theko
2010
(2) SACR 339
(GNP) at para 10 the full bench held that the onus is on
an accused to convince the court on a balance of probabilities that
the
failure to appear was not due to his fault. This passage was
however not necessary for the purposes of the case and reliance was

placed on
S
v Cronje
1983
(3) SA 739 (W)
[8]
. Both Du Toit
et al at 9-106 to 9-107 and Hiemstra at 9-28 consider that
Cronje
might be problematic and
that there may be a mere burden of rebuttal, Hiemstra relying on the
analogous situation identified in
Manamela.
46.
At this stage I believe it is unnecessary to suggest
anything more than that this court should apply
Singo,
particularly at para 39, and that the court
is concerned with an evidential burden.
47.
In this regard it is also of significance that the term
“
reasonable possibility
”
does not appear to entail a full burden of proof but may
be equated with a “
fair probability
”
as that term was adopted in the case cited by
Adv.
Van der Heever
of
Die
Afrikaanse
Pers Bpk v Neser
1948
(2) SA 295
(C). In
Afrikaanse
Pers
at 297 the court said:
”
Satisfy”
does not mean “prove.” I take “satisfy” to
mean therefore that the court must feel that there
is a fair
probability that the defendant’s defence is a good one, at any
rate that it is bona fide.”
48.
The term “
reasonable
possibility”
appears, with respect, to
have been deliberately selected by
Singo
in
contradistinction to a “
reasonable
probability
”
. In the later case of
Oakdene Square Properties (Pty) Ltd and Others
v Farm Bothasfontein (Kyalami) (Pty) Ltd and Others
2013
(4) SA 539
(SCA) the court found that applying it would be too
onerous in the context of business rescue legislation.
Although
in a different legal field I believe that the
following passages  from paras 29 and 30 are relevant:
[29] This leads me to
the next debate which revolved around the meaning of 'a reasonable
prospect'. As a starting point, it is generally
accepted that it is a
lesser requirement than the 'reasonable probability' which was the
yardstick for placing a company under
judicial management in terms of
s 427(1) of the 1973 Companies Act (see e.g. Southern Palace
Investments 265 (Pty) Ltd v Midnight
Storm Investments 386 Ltd
2012
(2) SA 423
(WCC) para 21). On the other hand, I believe it requires
more than a mere prima facie case or an arguable possibility. Of even
greater significance, I think, is that it must be a reasonable
prospect — with the emphasis on 'reasonable' — which

means that it must be a prospect based on reasonable grounds. A mere
speculative suggestion is not enough. …
[30] Self-evidently it
will be neither practical nor prudent to be prescriptive about the
way in which the appellant must show a
reasonable  prospect in
every case. Some reported decisions laid down, however, that the
applicant must provide a substantial
measure of detail about the
proposed plan to satisfy this requirement (see e.g. Southern Palace
Investments 265 (Pty) Ltd paras
24 – 25); Koen and Another v
Wedgewood Village Golf & Country Estate (Pty) Ltd and Others
2012
(2) SA 378
(WCC) paras 18 – 20). But in considering these
decisions Van der Merwe J commented as follows in Propspec
Investments (Pty)
Ltd v Pacific Coast Investments 97 Ltd and
Another
2013 (1) SA 542
(FB) para 11:
'I
agree that vague averments and mere speculative suggestions will not
suffice in this regard. There can be no doubt that, in order
to
succeed in an application for business rescue, the applicant must
place before the court a factual foundation for the existence
of a
reasonable prospect that the desired object can be achieved. But with
respect to my learned colleagues, I believe that they
place the bar
too high.'
And
in para 15:
'In
my judgment it is not appropriate to attempt to set out general
minimum particulars of what would constitute a reasonable prospect
in
this regard. It also seems to me that to require, as a minimum,
concrete and objectively ascertainable details of the likely
costs of
rendering the company able to commence or resume its business, and
the likely availability of the necessary cash resource
in order to
enable the   company to meet its day-to-day expenditure, or
concrete factual details of the source, nature
and extent of the
resources that are likely to be available to the company, as well as
the basis and terms on which such resources
will be available, is
tantamount to requiring proof of a probability, and unjustifiably
limits the availability of business rescue
proceedings.'.
49.
The term has been used in a number of contexts; from the
test for negligence (which appears to be inappropriate in the context
of
s 67) to the reasonableness of a decision taken which appears more
in point. See in this regard the cases of
National
Commissioner of Police v Southern African Human Rights Litigation
Centre and Another
2015 (1) SA 315
(CC)
at para 78 and
Tantoush v Refugee Appeal Board
and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T) where
Murphy J said at para 97
“
The RAB's
finding that the applicant was required to prove a real risk on a
balance of probabilities is not correct. The appropriate
standard is
one of 'a reasonable possibility of persecution' - see Immigration
and Naturalization  Service v Cardoza-Tonseca
[1987] USSC 32
;
480 US 421
(1987)
at 440. Two decisions of this division have concluded similarly,
namely Fang v Refugee Appeal Board and Others
2007 (2) SA 447
(T) and Van Garderen NO v Refugee Appeal Board (supra). In the latter
Botha J stated:
In my view by simply
referring to the normal civil standard, the RAB  imposed too
onerous a burden of proof. It is clear .
. . that allowance must be
made for the difficulties that an expatriate applicant may have to
produce proof. It is also clear that
there is a duty on the examiner
himself to gather evidence.
Later in the judgment
the learned judge added:
All this confirmed my
view that the normal onus in civil proceedings is inappropriate in
refugee cases. The inquiry has an inquisitorial
element. The burden
is mitigated by a lower standard of proof and a liberal application
of the benefit of doubt principle.”
50.
In my respectful view this also answers the question of
whether it is sufficient to simply rely on hearsay evidence or be
content
with an affidavit. Each case must be decided on its own facts
as to whether an affidavit by a person not subjected to what I will

refer to as cross-examination by the party against whose position the
evidence is tendered will satisfy the requirement or whether
it is
necessary to lead
viva voce
evidence. In
Terry v Botes and
another
2003 (1) SACR 206
(C) the facts were
objectively determinable and did not require an engagement into the
accused’s mental state.
PORRITT’S
EVIDENCE IN CHIEF
51.
Porritt claims that on
the night of 9 June 2017 he went to the local pub at about eight in
the evening. He had drunk a glass of
whisky at home. At the pub he
said that he had a “very big”  eisbein which is pork
knuckles and very rich. He
had a glass of wine before the meal
came.
[9]
After finishing the
meal but while still seated Porritt became light headed. He described
it as similar to the sensation when one
gets up too quickly.
52.
This surprised him and he
decided to go to the toilet. However when he got there he did not
feel like urinating and as he turned
to leave something occurred and
the next thing he knew was that he “
felt
a hell of a crack”
on
his head
[10]
and
that two men who he could not identify were  “
helping
me up and saying, are you okay, are you okay.  I was frankly
quite embarrassed and I got up as quickly as I could and
I said I am
fine, I am fine.”
[11]
He
then “
rushed
out the gents”
[12]
.
A
short while later during his evidence in chief Porritt claimed that
he felt perfectly lucid after this episode, and re-joined
“
the
people at the bar, as though the incident had not occurred.
”
[13]
53.
On returning to the bar
Porritt mentioned that he had blacked out. Adv van den Heever
expressly asked: “
Who
did you mention this to?”
Porritt
replied “
I
was with a friend at the bar and I mentioned to her that I had
blacked out and I was in a bit of shock about it.”
[14]
Counsel
did not ask Porritt to mention the name. This will become significant
later. Porritt however said that he felt a 100 percent.
With
hindsight his impression is that he had blacked out for a split
second, hit the floor, woke up, jumped up and rushed out.
He however
then said that while his impression was that he had blacked out for a
fraction of a second it might have been “
for
a lot longer, because those guys were standing over me and actually
in a bit of a panic.
”
[15]
54.
On returning to his
barstool he apparently just tipped
backwards
off the stool. Porritt claimed to have had no warning- he was
rendered unconsciousness and when he came to he found himself
lying
on the floor in front of the bar with a crowd of people around him.
He volunteered that on this occasion the blackout occurred
in the
main public area. He also said that, unlike the previous episode he
was shaken and had tremendous muscle fatigue. He described
feeling
“
as
though I had run the comrades marathon without training
”
.
[16]
55.
The next portion of the questions
asked by his counsel and the answers given by Porritt are relevant
and will be quoted:
“
Can
I ask you at this point, did you ask, or did anybody tell you what
happened to you whilst you were seated on the bar chair?
---
Yes.  When I was
helped up, a couple of people took me outside to get some fresh air
and again, I felt I recovered well.
But they told me that I
was as white as a ghost and I was freezing cold and that apparently I
had been out for a few minutes, twitching
on the ground and some
patrons thought that I may have been suffering an epileptic fit.
I
realised then that something was drastically wrong
and I had better get home.
So I went
back inside and I asked for my bill,
which
I then settled
and
I left
.
I walked across the parking yard and as I got to the car and, I again
got lightheaded, dizzy spell and I reached out to
steady myself on
the car.
Apparently
I again passed out, the next thing I knew, I do not know how long I
was down that time, the next thing I knew, the car
guard and another
fellow were picking me up off the ground.
…
At
that time, my recovery was entirely different
(to
the two previous occasions),
I
could not stand properly
and
I knew that there was no prospect of driving.  I was fuzzy, I
got into the passenger side of the vehicle and I could not
sit up
properly, to see where I was going
.”
[17]
(emphasis added)
56.
It is evident that Porritt described these events in a
manner which led one to believe that but for the third incident he
would
have driven himself home and that no-one was accompanying him
at that stage
57.
A short while later Porritt explained
how he felt on this occasion:
“…
not
only was my body broken, but all my mental faculties were severely
impaired.  A friend drove me home; I missed the turn
at the
traffic light and I overshot my house.”
[18]
58.
He also related that he was terrified
to drive and that the person who drove him home knew “
more
or less, but not exactly”
where
he stayed. He had missed the turn-off because he could not keep his
head up to give directions. Porritt thought that his head
was below
the dashboard. He even overshot his house and had to turn back.
59.
When he arrived at home he had great
difficulty walking; he could not stand up straight and had to be
helped up the stairs. He said
that he virtually crawled up the
stairs. He had great difficulty walking when he reached his home.
60.
He again proffered an unsolicited
explanation:
“
I
have been asked subsequently, by various people, why I did not go to
a hospital.  I have a phobia of hospitals and I avoid
doctors, I
have not been to my family doctor, I do not think in 10 years.
And when this happened, I just wanted to get home,
to my bed.”
[19]
61.
There are two observations which
should be made at this stage in anticipation of evidence that was
elicited during his cross-examination.
Firstly, Porritt gave the
distinct impression that he met his friend after he arrived at the
pub and that when he decided to pay
the bill and leave after the
second attack he had left his friend inside the pub and walked out
alone resulting in the further
distinct impression that someone else
who was not familiar to him had driven him home- either in his car,
or that his car was left
at the pub.  Secondly the friend who
was at the bar was identified as having been informed of the first
episode but was not
mentioned at all as having been among those who
observed the second or had helped him at any stage from the time he
fell until
he walked out the pub on his own after settling the bill.
62.
The next morning (Saturday the 10
th
)
he felt broken; his whole body was aching. Not only did he still feel
as though he had run the comrades but also as if a herd
of cattle had
trampled over him. He just lay in bed and at about midday received a
call from Bennett, who at that stage was in
Knysna.  Porritt
claimed that she immediately realised from his voice that something
was seriously wrong.  She asked
what the matter was and she “
had
a fit”
because Porritt had not been to
see a doctor. The State pertinently raised the challenge of hearsay
when Adv van den Heever advised
that she was not going to call
Bennett, who was in court. Adv Van den Heever then accepted that the
evidence was inadmissible.
Porritt proceeded to relate that as a
consequence of their conversation he was persuaded to phone his wife,
from whom he is separated.
63.
Porritt’s wife
expressed
shock when he related what had occurred, but because she was out to
lunch with some people she would fetch him within
the hour. She
however forewent her lunch and rushed him to the emergency ward at
Mediclinic in Pietermaritzburg. All this is used
to explain why he
had not contacted his family doctor, Dr Richard Anderson, who he also
volunteered, would have knocked off by
then. Porritt explained that
he was still very shaken, that his mental faculties were not what
they should have been and that accordingly
he was not in a position
to read the hospital forms and left it for his wife to complete.
The
hospital records which were subsequently brought by Dr Mugabi under a
subpoena duces tecum reflect that Porritt was admitted
into emergency
at 14:43 on Saturday the 10
th
.
64.
It is evident that Porritt was not admitted as a
consequence of any referral. It also appears from the admission
documents that
someone had mentioned syncope since the words “
Syncope
and collapse
”
were written on the
admission form that was printed out at that  time (i.e. at
14:43). The admission form was one of the original
hospital records
produced the following day by Dr Mugabi under the subpoena.
Porritt
volunteered that he had never seen the word before and only
subsequently after doing a bit more investigation was he told
that it
was a collapse due to unconsciousness.
[20]
65.
As a result of the history he related, as set out above,
Porritt was admitted through the emergency room where he was examined
by
the senior doctor on duty and put on a drip. An ECG was also done
because of concerns that he was suffering from a heart condition.
The
hospital records reflect the following:
“
Refer Doc: NO
REFERRING DOCTOR
Family Doc: NO FAMILY
GP
[21]
Admit Doc:  Dr
Manzi
66.
Porritt testified that he
told the emergency room doctor, who would have been Dr Manzi, that he
had to travel to Johannesburg for
business reasons on the following
day and therefore needed to be treated speedily.
He
explained that he did not feel that it was necessary to say that it
was for a court case; he just wanted them to know that he
had “
urgent
issues to attend to in Johannesburg”
and
needed to be there. According to Porritt she immediately responded:
“
No,
no, that is not going to happen.”
[22]
67.
He was then referred to a specialist, Dr Ingles. When
Porritt raised his concerns about traveling to Johannesburg, the
specialist
also said “
no ways
”
.
Dr Ingles picked up an irregular heart rhythm and said that although
it may not be serious, it needed to be thoroughly investigated.
68.
Dr Ingles informed Porritt that he would be placed under
the care of Dr Mugabi, a specialist cardiologist. Apparently Dr
Mugabi
was not available at that time.  He was then wheeled
through to the cardiology ward.  His headboard was marked “
high
fall risk”
and he was given strict
instructions that under no circumstances was he to get off the bed on
his own. He was told to ring the bell
for assistance if he needed to
go to the bathroom.
69.
Dr Mugabi came at about 23:00 in the evening. Porritt
related what had happened and Dr Mugabi explained the procedures that
he was
undertaking: They included
continuous
blood pressure monitoring, ECGs and an angiogram. Dr Mugabi also said
that he may have to refer Porritt to a neurologist
depending on the
outcome of the heart tests. The ECGs and blood pressure monitoring
had already been implemented by Dr Mugabi before
Porritt physically
saw him. Dr Mugabi was quite shocked that he had suffered three
blackouts in less than half an hour.
70.
On Sunday night Porritt
realised that “
they
were not going to get me out of hospital  in time to get to
court on Monday”
and
“
requested
a letter from the doctors that had admitted me, explaining the
position so that I could apprise the court appropriately
as soon as
possible
“
[23]
71.
He made the request to Dr Ingles who was the emergency
specialist. Dr Ingles in turn referred him to Dr Mugabi as the
responsible
doctor. Porritt then obtained a note from Dr Mugabi on
the Sunday night. It is A4 in the bundle of documents. Dr Mugabi’s

handwritten note  is on the stationary of Mediclinic and reads:
“
·
This
is to certify that Mr Gary Porritt is presently an in-patient at the
Mediclinic Hospital Pietermaritzburg
·
He
was admitted on 2017/06/10
·
He
is being evaluated for a problem of syncope
·
He
shall be an inpatient for at least the next 3-5 days
Sincerely Dr A Mugabi
(Cardiologist)
72.
Porritt stated that his general physical condition was
not good on the 11
th
.
Several tests were done on the Sunday and on Monday the 12
th
.
He was again asked if the issue of potentially being discharged from
hospital was discussed with Dr Mugabi on either the Sunday
or the
Monday. Porritt answered that it was discussed and Dr Mugabi informed
him that the tests would take at least three to five
days depending
on what was found. Porritt personally felt that he certainly could
not go to court and attend the proceedings.
73.
Porritt said that he had
seen the neurologist, Dr Yacoob, on Tuesday 13 June. The
neurologist’s report was clear. Porritt
sad that he was
somewhat distressed by this because “
they
had not found the cause of my problem”.
He
then claims that he related to the neurologist the story of a friend
of his who had gone through a similar experience during
a very
stressful period of her life which resulted in blackouts and after
all the tests came back clear from the neurologist and
cardiologist
she died suddenly in her sleep despite no diagnosis picking up that
there was anything wrong with her.
[24]
Porritt told Dr Yacoob that there was a belief that she had suffered
from continual adrenalin excretion which allegedly
results in drops
in the blood pressure.
Dr
Yacoob replied that this was out of his field and that Porritt would
need to see a clinical psychologist who would know about
these
issues. Since he was under the control of Dr Mugabi, Dr Yacoob could
not make the recommendation and that Dr Mugabi would
have to do the
referral.
74.
Some of Porritt’s testimony was not led
chronologically. However it was common cause that Warrant Officer
Harding served the
court order of 12 June personally on Porritt
sometime during the day of Tuesday 13 June. While Porritt does not
claim to have received
any advance notice of it from Bennett or
attorney Frank Cohen, it is evident that during the course of Tuesday
Porritt knew the
terms of the order of the 12
th
June.
75.
W/O Harding had deposed
to an affidavit and in it he mentioned that Bennett was sitting next
to Porritt at the time of service.
Porritt replied “
She
never came to Mediclinic or Pietermaritzburg during that period …
from the 10 to 14 June”.
[25]
According to Porritt the
person sitting next to him at the time the order was served on him
was Vanessa Pretorius. This was the
first time that her name was
mentioned by Porritt in evidence.  Porritt did not believe that
she had made the remarks which
Harding had attributed to the person
he claimed was sitting next to Porritt
[26]
76.
Porritt spoke to Dr Mugabi about this late on Tuesday
when the doctor came through on his rounds.  Dr Mugabi however
said that
he had already arranged for Porritt’s discharge by
noon on the following day. This took Porritt by surprise since “they
had not determined the cause of my problem
which was the whole purpose I went to hospital
”
.
While Porritt accepted that the tests done up to the time Dr Mugabi
said that he was ready to be discharged showed no heart issue,
“
or
one of the brain issues that could have been determined on the few
tests they did”
it is evident
that Porritt believed that not all tests to eliminate a neurological
issue had been done. He was however relieved
that test for carotid
arteries was negative which meant that he “
did
not have silted up carotid arteries like Ms Bennett”
77.
According to Porritt, Dr
Mugabi agreed that it was a good idea for him to see a clinical
psychologist and arrangements were made
for him to see Dr Elder who
would consult with him at the hospital at 9am on the following day,
which would be before he was discharged.
When the court asked for
clarification Porritt said that Mugabi had authorised it but that the
hospital arranged the consultation.
He also could not recall who made
the appointment or how Dr Elder’s name came up for the referral
since he never knew the
name previously.
[27]
78.
In any event he did
not see Dr Elder. According to Porritt just before the appointment on
Wednesday he received a message that Dr
Elder was ill and could not
attend to her patients. Porritt also said that she had squeezed him
in because she had been contacted
after hours, but he did not
remember by whom. It is for this reason that she could only see him
at 3pm on the Friday public holiday
(June 16
th
)
since she had to push out her other patients for the Wednesday and
Friday.  Porritt believed that this message was conveyed
by
Bennett
[28]
79.
Adv van den Heever then
asked Porritt for how long he was actually marked as a ”
high
care patient”.
At
this stage the medical records had not been brought through. He
answered that it was until Wednesday 14 June when he was
discharged.
[29]
He was
discharged by Dr Mugabi at about lunch time.
80.
Since the appointment
with Dr Elder had been arranged under the hospital plan he was
anxious about it being extended until after
he was discharged as it
“
would
form part of the hospital’s investigation into … my
collapses. My syncope”
[30]
.
He however was given a sticker by the sister at the cardiac unit to
give to Dr Elder when he met her on Friday. Porritt volunteered
to
produce it from his pocket. Adv van den Heever said that it need not
be shown.
[31]
There is however
no mention of this in any of the hospital records that were brought
through on the following day by Dr Mugabi.
81.
Porritt testified that from the Tuesday (i.e. 13 June)
he started having the most unbelievable headaches he had ever
experienced
in his life. He claimed that he was not a headache
sufferer and if there is an occasional onset of a headache it only
requires
one or two Sindols and the headache is alleviated within 15
minutes. He became very distressed because he had asked for
medication
on three occasions before receiving it. The staff
explained that they needed authorisation from Dr Mugabi to prescribe
the medication.
The medication proved completely ineffective and
Porritt complained further because the headaches were unbearable. He
was then
given some big green tablets which, although not very
effective helped to a certain extent. He took them again on the
morning of
the 14
th
and
when he was discharged was given a large container of them.
82.
Porritt explained that he
was extremely distressed about being discharged before the cause of
his problem was determined and hoped
that Dr Elder would be able to
shed some light on the problem. Porritt explained that physically he
was weak and was enduring these
blinding headaches. While in his ward
preparing to leave he bent forward to tie up his shoelaces and felt
that his head was “
full
of a heavy liquid that rushed to the front of my head as I bent
forward. And I thought my head was going to explode.”
[32]
He also explained that if he stood up it would instantly set off the
headache, so too if he sat up from a lying position. He said
that he
had no headaches until the Tuesday afternoon and believes it arose
after the angiogram.
83.
He also claimed that the green tablets proved to be
useless and that he was a wreck from the headaches
.
He therefore procured some migraine packs
from a chemist which contained 5 tablets in each pack. He said that
they were very strong
and are supposed to instantly knock out a
migraine. He claimed that he was taking three packs of 5 tablets each
a day. He started
taking the migraine packs on Wednesday and
continued with them on Thursday, Friday and subsequently. Porritt
said that he suffered
a terrible migraine when giving his evidence on
the 26
th
and that
he had to lie on the floor because if he stood up it was terrible.
He
also claimed that he suffered a terrible migraine in the cells on the
night of 27 June and took another migraine pack in the
early hours of
28 June which has enabled him to be in court to testify on the day in
question. He described all these headaches
as unbelievable and even
as he was testifying it felt as if he had been punched in his right
eye.
[33]
84.
On Thursday morning 15 June Dr Elder’s
receptionist informed him that she had become more ill and had to
cancel all her Friday
appointments. Porritt explained that he was
relying on Dr Elder to send a report to the court which he had hoped
to have on the
Wednesday and failing that on the Thursday. Since it
was the long weekend he was also in a panic as to how he was going to
deal
with his health issues because he could not access anyone else
on short notice. Since the court order required a report by Thursday

at 2pm he desperately tried to arrange to see another specialist
before then but was unable to do so. He claimed that many of the

specialists purported to be booked out for 2 months. Porritt wished
to see a psychiatrist or clinical psychologist. However in
his own
mind he would not be physically capable of attending court on Monday
19 June  explaining that:
“
I was by then
in fear for my life, because the headaches were killing me. I did not
know what had caused my blackouts. I could not
drive a car. And if I
had been ordered to get onto an aeroplane I would have rather had an
AK47 put in my ear and the trigger pulled.”
[34]
85.
In answer to Adv. Van der Heever’s question as to
what drove him to fear for his life he said;
“
I had no
warning and no control over they syncope… I have always been a
robust person and it was just as though somebody
just switched out
the lights with no warning whatsoever. And then it would come on and
now I had started with these unbelievable
headaches which I had never
experience in my life before. And I knew something was seriously
wrong but I had been discharged from
the medical facility without a
prognosis.
”
[35]
86.
After being informed that
Dr Elder would not be able to consult with him he tried to get a
psychiatrist or another clinical psychologist
to asses him as
urgently as possible. He even tried to contact Dr Dobreva’s
rooms. He said that she may be reluctant to treat
him because she was
treating Bennett but nonetheless he though she may be able to direct
him to a psychiatrist or clinical psychologist.
He however spoke to
her bookkeeper because she had already gone away for the long
weekend. The bookkeeper advised that if he was
admitted to a private
psychiatric facility like Oatlands there would be a psychiatrist on
call and they would be able to access
one over the long weekend. It
was important for him to do so because “
I
was desperate to have my problem assessed and to receive some
treatment for it so that I could get to court on the Monday or
failing that to receive a proper specialist report on what the
situation was.”
[36]
87.
Dr Dobreva’s bookkeeper also informed him that one
could not get into Oatlands directly but needed a referring Doctor.
Since
his own doctor had retired since he had last seen him over 10
years ago and was working elsewhere Porritt contacted his ex-wife
who
informed him where Dr Anderson was practicing and gave him
directions. Porritt informed the court that he was taken to Dr
Anderson by Vanessa Pretorius. When he arrived there he was informed
that the doctor had also knocked off for the long weekend.
This would
have been between noon and 1pm.
88.
Porritt was referred to
one of Dr Anderson’s partners, Dr Cynthia Brown. He then
consulted with Dr Brown who he had not previously
met. He presented
his history to her and mentioned that after his appointment with the
clinical psychologist had been cancelled,
he was unable to access a
psychiatrist or another clinical psychologist. He told her that it
was desperately urgent for him to
see one. He also informed Dr Brown
that if he was referred to Oatlands psychiatric care facility there
would be a psychiatrist
or psychologist on call who he would be able
to see over the weekend. He said that his intention was to have his
medical condition
assessed and treated because he was being killed by
the headaches and because he had the Monday court date looming which
he had
mentioned to Dr Brown.
[37]
89.
Dr Brown was somewhat disparaging about the EEG test
that had been done for epilepsy and said that it was not very
accurate. She
indicated that there was an outstanding neurologist who
practiced in Howick. Dr Brown thought it appropriate for him to
obtain
a second opinion from a neurologist while he was admitted at
Oatlands.
90.
In response to a direct
question from his counsel Porritt said that it was absolutely not his
intention to be admitted into Oatlands
or see a psychologist or
psychiatrist in order to escape coming to court on Monday 19 June. He
said that his first prize would
have been to be well and attend
court.
[38]
Dr Brown did not
say that it was necessary for him to see a psychiatrist or
psychologist. She in fact contacted Oatlands and made
the necessary
arrangements for Porritt’s admissions. She was able to arrange
an admission for Saturday 17 June. Dr Brown’s
referral note had
been forwarded among the documents already handed into court. It is
dated 15 June and reads
“
To whom it may
concern
This is to certify
that (indecipherable) saw Mr G Porritt today.
He has just recently
been discharged from Mediclinic for investigation of syncopal attacks
by various specialists.
I have now referred
him to Oatlands psychiatric facility in Howick for his mental state
and possible further evaluation for epilepsy.”
91.
Porritt explained that later on the Thursday afternoon
he was contacted by Terry, who is the hospital manager at Oatlands
and Porritt
told her that he had been advised that a highly rated
psychologist, Dr Olla, was on standby over that weekend. Terry
advised him
that Dr Olla was going on leave straight after the
weekend and that she accordingly was discharging her patients on the
Thursday
and was not prepared to take Porritt on as a patient or to
consult with him over the weekend. She also said that there would be

no therapy sessions over the weekend and that there would be no point
in him being admitted on the Saturday but should only come
on the
Sunday.
92.
Porritt said that he was very distressed by this because
he wanted to receive treatment as soon as possible. He informed Terry
Wilson
that he was not at all happy that he would only be able to see
a psychiatrist at 7:30 on the Monday morning. Porritt expressed
unhappiness at the change of arrangements and said he would refer to
her. He repeated that he wanted to have his syncope and headaches

resolved at worst by Monday. Mr Porritt stated that he was in no
condition to board a plane and fly to Johannesburg nor could he
drive
a car. He said that he is not a position to drive a car because no
one has explained the cause of his syncope. He has no
control over it
since he suddenly blacks out with no warning and would be endangering
other road uses.
93.
Because Porritt was
unhappy about not being able to see Dr Olla he phoned Terry. She was
unavailable and he left a message for her
to contact him urgently.
She only returned his call at 19h00. On the Sunday morning he then
phoned Oatlands to speak to Terry.
He was informed that she was off
for the weekend but she had changed his booking to Sunday afternoon
and he would see Dr Pillay
first thing Monday morning.
[39]
94.
Mr Porritt was admitted at about 15:30 on Sunday 18
June. He did not see a medical practitioner and therefore demanded to
see Dr
Olla. He did so “
Because I had
been told she was the stand-by doctor.”
This
is difficult to follow since Porritt had already put down the phone
to Oatlands on the Saturday when he was told that Dr Olla
would not
be available and appeared to have resigned himself to being treated
by any psychiatrist or psychologist who was on duty
as suggested by
Dr Brown.
[40]
95.
The person who admitted him, a Ms Ferguson, contacted
Terry and then said that Porritt would have to wait until the next
morning
to see Dr Pillay. Porritt claimed that it was important for
him to see Dr Olla on the Sunday as he was very unwell and wanted
medical
attention as soon as he could get it.
96.
A little after 7:30 on the Monday morning he consulted
with Dr Pillay. Dr Pillay asked him to provide a history and Porritt
was
referred to Dr Pillay’s notes at bundle A 134 which had not
been previously produced by the defence. It reflects that Porritt
was
admitted on 18 June and contains Dr Pillay’s handwritten notes.
It reflects that Dr Pillay referred Porritt to Dr Mansfield
who was
the neurologist that Dr Brown had mentioned and also referred him to
Dr Maxwell to review the neurological symptoms and
possibly undergo
an MRI brain scan. According to Porritt Pillay felt that this would
provide a better indication than the tests
that had been done.
97.
Porritt said that he
informed Dr Pillay that he had to be in court on that very day (i.e.
19 June). He added that “
I
had the court order with me and discussed it with her in detail.”
After
consulting with Porritt Dr Pillay did not suggest that he should
rather go to court nor did she suggest that he was in a fit
state or
that he was in a position to actually attend court.
[41]
98.
Porritt explained that he was not able to attend court
on the 19
th
because:
“
Dr Pillay said
I was not fit to attend court. That was on the certificate.
”
[42]
The
document (A74A) is handwritten and signed by Dr Pillay. It reads;
“
To whom it may
concern,
This is to inform you
that the above mentioned Patient was admitted to Oatlands care centre
on 18/06/17.
Presented with
syncopal attacks? Psychiatric manifestation. To be further assessed.
Not fit to attend
court currently.”
99.
Porritt explained that he read through this note during
the consultation. He did not see Dr Pillay after this consultation
which
was on the morning of 19 June and although he tried to speak to
her again he was unable to.
100.
He was then discharged from the Oatlands facility on the
afternoon of Tuesday 20 June. Porritt said that no Doctor or
specialist
saw him or attended to him before he was informed that he
was being discharged. Only Terry informed him about it. She called
him
out of a therapy session with one of the psychologists at
Oatlands.
Porritt
was then referred to the last line on Dr Pillay’s patients’
notes and doctors’ orders (A71) which reads
“
review
21/6/17”
. Porritt was also referred to
a motivation letter for funding for hospitalisation event (A70) which
referred to Dr Pillay proposing
Cipralex and Stilnox medication as
well as treatment in the form of individual group psychotherapy.
According to Porritt Dr Pillay
mentioned that she thought he could be
treated as an outpatient after a period.
101.
He was shocked when he was told that he would be
discharged. He explained it as follows;
“
I had told the
hospital about the court order as soon as I heard about it the
previous day and that I was anticipating that at some
stage someone
would come to arrest me and when Terry called me out of the therapy
session she said the police have now arrived
and Dr Pillay has
resigned as my psychiatrist, because she does not want to get
involved in a court case. None of the other psychiatrist
want to get
involved either in a court case. So I now have no treating
psychiatrist therefore legally they are not allowed to keep
me in the
facility. And they had no option but to discharge me.…  I
felt that I was still very unwell and I had been
tossed to the
wolves.” Porritt however did say that Terry had recommend a
transfer to  Akisa which is an acute facility
which she felt
would be more appropriate for his condition as Oatlands was a
sub-acute facility.
[43]
102.
Porritt was then referred to the Oatlands’
discharge sheet which reflected that he was discharged at 15:40 on 20
June.
The note reads “
patient
is
discharged as per Dr
orders all his medication was given to him.”
Porritt
was also referred to A72 which are the patient notes and Doctor’s
orders of 20 June which read:
“
Dr Pillay –
per WhatsApp message.
Dr Pillay informed Sr
Jo that she was discharging patient from her care at 12h42
“
103.
Porritt believed that the Police had arrived at that
time. He was in a therapy session when they attempted to arrest him.
It will
be recalled that this was thwarted by the application for
leave to appeal.
104.
Porritt’s son Greg fetched him in the evening at
about 19h00 from Oatlands. Porritt said that he had two dizzy spells
while
waiting for his son to arrive and that his mental state was not
good and that the way he had been handled as Oatlands exacerbated
his
position. Porritt explained that when he went into Oatlands:
"I
was very hopeful when I went there that they would give me the
answers to what was causing my collapses.  I was extremely

distressed about it.  I had these terrible headaches that had
been persisting since Tuesday."
[44]
105.
Porritt was taken by his son back to Mediclinic
Pietermaritzburg which he added had been recommended by Terry as an
alternative
to Akisa. Terry said they would have a psychologist on
standby who would see him. It is evident that there was no referring
doctor
and he went into casualty again. They examined him and
admitted him to the medical ward under the care of a physician. He
went
to Medicare because he was in a very bad state and urgently
needed medical attention which Oatlands could not give him. According

to Porritt Terry had in fact recommended Mediclinic as the best place
to treat him for his headache as well as for his psychological

condition.”
106.
While travelling between Oatlands and Mediclinic Porritt
stated that he had another syncope attack while in his son’s
car.
He did not realise that he had passed out. It was not a long one
but his son told him afterwards that it had occurred.
107.
Porritt arrived at Mediclinic in the evening of 20 June
where he remained until the following morning when the police arrived
in
the person of Captain Van Wyk and her colleague. They informed him
(while he was in his ward) that the appeal case had been lodged
and
withdrawn and therefore he was now under arrest.
This
means that on Porritt’s version he had not been informed by his
legal representatives that they had withdrawn the application
for
leave to appeal that day. This despite Adv. Van Der Heever informing
the court that these were her instructions.  This
does put into
question the veracity of Porritt’s statements regarding
instructions given by him and the consultations that
took place
whether face to face or over the phone between himself and those on
his behalf on the one hand and his legal team on
the other.
108.
Shortly prior to the police entering his ward he had
been informed by Dr Sadiq, the physician,  that the police were
outside
and he got the impression that “
the
Hospital just could not wait to get rid of me.”
109.
After his arrest Porritt confirmed that he was examined
by Dr Soni, a district surgeon in Pietermaritzburg. The examination
lasted
approximately 15 minutes. He claimed that he was better that
morning than the night before because he had been lying down and had

a little rest the night before. Nonetheless he was still weak and
still had a headache. It was not the extreme pain that he had
the
night before which he rated on a scale of one to ten out of ten. They
had put him on an intravenous drip which appeared to
have worked
during the course of the night.
110.
Porritt explained that the police were kind to him and
put him in the front passenger seat which they reclined as far as it
would
go so he could be as horizontal as possible. This was to avoid
his headache exacerbating if he sat up. He claimed that the headache

was manageable for the first part of the trip but shortly after
Harrismith his “
headache went berserk
.”
His headaches got worse and he then had cold shivers as he was
freezing cold. This was approximately 30 km from Johannesburg.
He
then took up a foetal positon on the back seat with his head lying
down behind the driver’s seat. This appeared to make
a huge
difference and his condition improved. He was not as freezing cold
and his condition became more bearable.
111.
During the course of the trip the police had
communicated with his attorney on more than one occasion.
112.
The police took him straight to the emergency ward at
Charlotte Maxeke hospital. There were a large number of people seated
in a
queuing system and the police officers bypassed the queue and
went into a room where a basic blood pressure test was conducted.
The
police explained to the doctor that they had a court order requiring
them to admit him. According to Porritt the reaction of
the doctors
to the court order was;
“
who does that
judge think he is? Who made these arrangements? There are people that
have been queuing for two days
.”
113.
At this point Porritt said that he could not even walk
or stand and that mentally he felt terrible because he had a near
death experience.
He claimed that his physical condition deteriorated
immensely from the time of discharge in Pietermaritzburg until he
arrived at
Charlotte Maxeke.
114.
Since he could not be admitted into the Charlotte Maxeke
he was taken to Milpark Hospital where the specialist emergency
physician
on duty admitted him. After that he underwent another brain
scan and some testing. He was then referred to a neurologist. It was

now approaching 03:00 in the morning and the physician said that it
was not reasonable to call out a specialist neurologist at
that time
but he would be seen in the morning. Colonel van Wyk informed the
physician that Porritt had to be in court at 09:00
in the morning.
The specialist physician said that if Porritt was admitted he cannot
be taken out. Colonel Van Wyk said that she
had a court order and if
the physician was not going to admit him in the hospital then she
would put him in a holding cell to which
the physician responded that
it “
would not be fair to Mr Porritt in
his condition.”
115.
The physician then went to see the hospital management.
At that stage no one was aware that private hospitals do not admit
persons
who are in police custody. Milpark clinic then advised that
they would not admit Porritt and would discharge him. Colonel Van Wyk

then asked Bennett who was staying at a hotel in Rosebank whether she
would have Porritt stay with her until the morning as well
as Colonel
Van Wyk. Bennett agreed and this was then arranged.
116.
After Porritt attended court that morning he spent the
night at the Johannesburg central police station. On the following
morning
being Friday the 23
rd
at approximately 05:45 Porritt was informed that Adv.
Van Der Heever was coming to see him at 6:30. Porritt then jumped up
and immediately
collapsed. There was a step about 18 inch wide and a
foot wide which his head just missed fractionally. He lay there for
about
20 minutes to compose himself. He was asked whether he wanted
tea and he got up very carefully on his hands and knees and gradually

supported himself on the wall until he could steady himself.
117.
On Monday 27 June Porritt said he was probably at his
best because he had lain flat on the floor from Friday afternoon for
about
20 hours a day until he consulted with the neurologist on
Monday afternoon. However on the 27
th
he was not well he had a terrible headache and actually
lay on the floor in court to try and get the blood to ease the pain.
He
said that when he was in the witness box during the afternoon of
the previous day his vision was actually blurred and he experienced

terrible aches on his temples and behind his eyes.
118.
Porritt’s evidence in chief ended off with him
explaining that it was not possible for him to attend court on 12
June because:
“
I was extremely
unwell and I was very fearful for my state of health. I did not
believe I could get onto an aeroplane. …
I was in Mediclinic
undergoing assessments for what was the cause of my headaches.”
[45]
It
was also not possible for him to attend court on 19 June because he
again was very unwell and very fearful of his state of health.
He
could not possibly get onto an aeroplane because of his headache
which,  if he stood up from a sitting position, felt as
if his
head was about blow. He further more testified that Dr Mugabi advised
him on the 12
th
of
June that he could not attend court and that he was again advised on
the 19
th
that
he was not fit to attend court.
119.
Before dealing with Porritt’s cross-examination by
the State it is appropriate to set out the objective facts as Porritt
related
them without entering into the explanations offered by him,
which were tested during his cross-examination and which must be
considered
by reference to the hospital and medical records properly
weighed as to relevance and the purpose of their admissibility (e.g.;

as to truth of content or as to simply being what they purport to be
but not as to truth of content without more)
a.
Porritt
claims to have had three syncope episodes within half an hour on the
night of 9 June which he described as life threatening
yet he does
not go to the emergency ward at Mediclinic in Pietermaritzburg which
it turns out was very close to the pub where he
would at least have
had basic tests that would readily have evaluated  all his vital
signs and given him either some comfort
or have resulted in some
elevated readings, such as blood pressure from the stress of the
unexpected episodes.
At this stage Porritt was
aware that he was due in court on Monday and that going immediately
to emergency would have been the surest
way of readily satisfying a
court should he not be fit to attend on Monday.  It was also the
quickest way of obtaining a medical
certificate and pre-cognise the
State that he would not be attending court so that they could conduct
thorough investigations promptly,
including, as the court heard from
the bar, obtaining CCTV footage from the pub;
b.
Porritt
only admits himself, effectively after the ordinary working hours of
medical practitioners, on the Saturday at about lunch
time. This
resulted  in any necessary tests, which the medical
practitioners (faced with the history described by Porritt)
were
obliged to conduct,  not being completed before Monday when
Porritt was due in court;
c.
Porritt
did not explain to the doctors immediately on admission that he was
due in court on Monday. He only did so on Sunday night
evening;
d.
Porritt
could have been discharged at 14h00 on Tuesday 13 June but asked to
be discharged on the Wednesday at 14h00;
e.
Porritt
did not attempt to contact any of the treating doctors at the time of
discharge to advise that he had just endured a further
massive and
unbearable headache;
f.
After
his discharge from Mediclinic Porritt did not as a fact attend on a
neurologist  at any stage until after his arrest
despite this
being recommended by Dr Mugabi and despite Porritt himself expressing
concern about the inadequacy of the neurological
examination. Nor did
he attend on a psychologist or psychiatrist until Monday morning 19
June 2017 despite Dr Dobreva being available
and being the person
who, notwithstanding her busy schedule, he stated he was able to
contact directly in order to make an urgent
appointment for Bennett,
as was revealed during the course of the enquiry into Bennett’s
non-attendance on 30 January.
As I have mentioned, at
this stage I am only concerned with the hard objective facts since
the explanations given must be weighed
on a circumspection of the
totality of the evidence;
g.
Despite
the court order of 19 June expressly giving him that option, Porritt
did not request a nurse or any medical practitioner
to accompany him
to Johannesburg despite claiming to have suffered another syncope
attack some 24 hours earlier, making it the
fourth in less than
a week and despite the onset of his headaches while at Oatlands
[46]
;
h.
At
no stage was Porritt actually treated for any psychological or
psychiatric condition or disorder, other than possibly being given

pain-killers for his headaches, which had not manifest themselves
until the results of angiogram test came through.  At best
he
attended group therapy sessions at Oatlands.
i.
He
was discharged from every medical facility to which he was admitted
of his own accord. And similarly the State appointed medical

practitioners could find no physiological condition to account for
his alleged life threatening episodes of syncope and excruciating

headaches.
120.
As stated earlier, since Porritt's testimony was not
completed by 29 June and because it was arranged that Doctor Mugabi
and Doctor
Pillay would come on specific days, so as not to unduly
disrupt the interest of their patients and the hospital concern,
Porritt's
evidence was interrupted after evidence-in-chief, to enable
Doctor Mugabi to testify on 29 July and for Doctor Pillay to testify

subsequently.  In any event, Adv van den Heever on behalf of
Porritt, confirmed that there was no prejudice to her client.
DR
MUGABI’S EVIDENCE
121.
Dr Mugabi produced not only the documents relating to
his treatment of Porritt but also had been given custody of all the
hospital
records and produced the originals in court. These formed
bundle C which comprised the emergency room records when Porritt
admitted
himself at Mediclinic on 10 June; Bundle D comprised the
hospital records relating to Porritt’s admission into the wards
from 10 June until his discharge on 14 June; Bundle E are the
emergency room records and doctor’s notes when Porritt again

admitted himself into Mediclinic on 20 June; Bundle F are the further
hospital records relating to Porritt’s admission of
20 June and
Bundle G was Dr Mugabi’s own notes which generally were a
duplication of some of the other records and included
handwritten
annotations made by Dr Mugabi to his typed report that was already
produced in Bundle A.
122.
Although Dr Mugabi had been subpoenaed by the court
under s 67 (4) both Adv van den Heever and Adv Coetzee were asked
whether they
wished to lead him. Both declined and the court
proceeded to ask Dr Mugabi a number of questions.
123.
Dr Mugabi testified that Porritt was admitted because he
had reported to have suffered three episodes of transient loss of
consciousness
on the previous day. The emergency room had immediately
conducted a 12 lead ECG. The emergency doctor noted some
abnormalities
and felt that a cardiologist should be consulted. On
the evening of 10 June Dr Mugabi, who was on duty as the resident
cardiologist
that night, saw Porritt in the cardiac ward to which
Porritt had been taken.
124.
They had a conversation and Dr Mugabi took Porritt’s
history and examined him. Porritt had related to him briefly the
three
episodes of transient loss of consciousness. Porritt had
related them in the same order as he had testified in court. Dr
Mugabi’s
examination revealed a minor abnormality but this did
not explain Porritt collapsing. They did however prompt Dr Mugabi to
complete
an assessment of Porritt’s heart as one could not just
dismiss the heart as a cause of his collapses.
125.
Dr Mugabi therefore directed an exercise stress test and
echo-cardiogram for the following morning (i.e. on the Sunday). The
results
of the echo-cardiogram tests satisfied Dr Mugabi that the
structure of Porritt’s heart was essentially within normal
limits.
The echo-cardiogram therefore ruled out the heart as a cause
of any syncope.  Porritt performed well on the exercise stress

test and had no cardiac symptoms, his heart-rate was normal as was
his blood pressure for a person exercising. There were no significant

heart rhythm abnormalities and he did not experience any chest pains.
Not only did this confirm that there was no significant structural

heart disease but Dr Mugabi was able to conclude that the likelihood
of carotid artery disease was remote.
126.
Dr Mugabi then decided to do a cardio-angiogram on
Monday 12 June. This comprises an X-Ray of the vascular supply to the
heart.
Dr Mugabi put it that he wished to be absolutely certain that
Porritt did not suffer from any coronary artery disease or
significant
blockages or narrowing in the arteries that supplied
blood to the heart. Dr Mugabi could safely conclude at that stage
that whatever
caused the collapses described by Porritt his prognosis
was good.
Dr
Mugabi put it this way;
“
even if we had
not at this stage identified an exact cause why had collapsed, but
what we could safely say was he had a favourable
prognoses, he was
not about to die from whatever caused his collapse
127.
The results of an angiogram are produced immediately.
The results were therefore known on 12 June. Dr Mugabi therefore
considered
it prudent to obtain the opinion of a neurologist. This is
because he had to consider whether the loss of consciousness
described
by Porritt was the result of a seizure or stroke and, since
he had fallen off a bar stool, whether he had suffered any head
injury.
Dr Yacoob was then brought in. He did an ECG of the brain and
an ultrasound of the arteries that take blood to the brain including

a CT scan of the brain. During his examination Dr Yacoob also took
down an independent history from Porritt.
128.
Dr Yacoob informed Dr Mugabi that he was not convinced
that Porritt had suffered a seizure, but he could not say that with
certainty.
Dr Yacoob was also satisfied that Porritt had not suffered
a stroke. He therefore felt that Porritt could be discharged and
observed
but did not consider that Porritt required seizure treatment
at that stage. Dr Yacoob considered that Porritt did not require any

further neurological assessment either. Dr Mugabi was of the view
that if there was any subsequent seizure or subsequent collapse
they
would then carry out further cardiovascular testing.
129.
Dr Mugabi confirmed that they did not secure a diagnosis
before Porritt was discharged but they were able to secure a
prognosis
which they knew was good. What Dr Mugabi did say was that:
“
When we were
left with a cause, without a diagnoses after an initial evaluation we
allow for time.  We allow, because the events
may recur.
Maybe they may, maybe they may not, and I think
only
when events recur are we then justified to do more testing
,
to do further evaluations to ascertain a diagnoses.
(emphasis added)
130.
Dr Mugabi also confirmed that Porritt had told the
nursing staff that he was experiencing excruciating headaches. Since
this was
not Dr Mugabi’s field he had asked a neurologist to
have a look at Porritt. From a cardiovascular situation there is no
correlation
between headaches and a seizure and from a cardiological
perspective there is no relationship between the heart and a
transient
loss of consciousness. There may well be from a
neurological point of view. But since the neurologist was comfortable
that his
tests were sufficient to have Porritt discharged he was
confident that Porritt could go home. There was also no
cardiovascular
reason to stop Porritt from driving a car. The
reference in Dr Mugabi’s note of a referral to a neurologist in
fact occurred
prior to Porritt being discharged.
131.
Dr Mugabi explained the
typed note he made of referring Porritt to a psychologist at the
patients request (G2).  He said that
Porritt had made a specific
request to see a psychologist. At that stage Dr Mugabi said that he
was “
fairly
confident that he (Porritt) was going to leave hospital before the
19
th
.”
[47]
Porritt then told him
that there was a court case and that the police were trying to frame
him and the police had asked him to submit
a report and Dr Mugabi
felt that this may have created coping problems for Porritt and
therefore considered that Porritt’s
request to see a
psychologist was not unreasonable. I need to pause at this stage.
It
is evident that the reason Dr Mugabi considered Porritt’s
request not to be unreasonable was because he felt that Porritt
might
not be coping with the stress attendant on the court case or possibly
that the seizure described by Porritt or the transient
collapse had
added to the psychological stress.
132.
Dr Mugabi said that he could see no reason why Porritt
could not have travelled to court and that;
“
after the
cardiac assessment and assurances by the neurologist there was
absolutely no reason why Mr Porritt could not travel”
[48]
.
He
also confirmed that he had been unaware that Porritt had again been
admitted to Mediclinic on 20 June or of any of the events
relating to
his admission. The first time Dr Mugabi became aware of this was when
he was given the hospital records to produce
in court.
133.
The court considered that having regard to the interests
of Porritt, Adv van den Heever should commence with the questioning
of
Dr Mugabi with the right to further question him once Adv Coetzee
had completed his questioning.
134.
Dr Mugabi conceded that
it would have been remiss or negligent of the casualty physician on
duty not to admit Porritt taking into
account the history he had
given to them. The thrust of the questions was directed at Dr Mugabi
not having discharged Porritt,
if they had not done the tests they
had, prior to in fact discharging Porritt and that it would have been
irresponsible not to
have completed the tests which were in fact
completed on 12 June, thereby precluding Porritt from being
discharged before then.
[49]
135.
Dr Mugabi explained in response to a question by Adv van
den Heever that he saw Porritt on the evening of 13 June planning to
discharge
him then but Porritt wanted to go home on the morning of 14
June after seeing a psychologist and accordingly he was to be
discharged
only at noon on 14 June. Moreover the request was not
unreasonable as Porritt was already liable for the cost of the
hospital accommodation
whether he left on the evening of 13 June or
by noon on the following day. This then put the request that Porritt
had made into
context. When pressed by van den Heever to agree that
he was professionally satisfied that it was correct for Porritt to
see a
psychologist  Dr Mugabi was not prepared to go further
than to state that:
“
Let us put it
like this, I thought the request was not unreasonable, let us put it
that way
.”
136.
It was then put to Dr Mugabi that Dr Yacoob’s note
(G3) concluded that while the EEG was within normal limits it does
not
exclude a seizure disorder.
Dr
Mugabi was also referred to the nurses’ bed notes at D56 to D63
which referred to Porritt stating that he had a headache
on the
evening of 12 June. This was both at 20h00 and again at 22h20 and on
13 June at 11h05. He was also referred to the notes
at D102 which
referred to medication being prescribed for headaches.
137.
Adv van den Heever then consulted with Porritt and on
resuming put to  Dr Mugabi that her instructions were that
Porritt
had requested the  medical certificate of 11 June (A4)
because:
“
he was supposed
to be in court on the 12
th
, and this note was
needed for the court to see that he was in fact in the hospital and
he was going to be there until such time
as an expert or a specialist
decided that he can now be discharged after whatever?
“
[50]
.
138.
Dr Mugabi replied that he did not recall the specific
circumstances but that:
“
patients always
asked for these notes as evidence that they are, at the time, in
hospital and they will be in hospital for some
time, for some time,
for some unforeseen time in the future, yes, so I wrote this one.”
139.
It was put to Dr Mugabi that syncope could relate to
other medical disorders such as sugar levels, the functioning of the
brain,
or a stress source.
In
response Dr Mugabi said that syncope is a subset of the broad
category described as a transient loss of consciousness. He said

that:
Syncope means that you
have lost consciousness because for a period of time the whole brain
has not received blood. This is due
to the supply of blood stopping
and it then is re-established
”
[51]
.
However,
as Dr Mugabi explained, loss of consciousness can arise from causes
other than syncope. It can be consequent upon a seizure
or a loss of
sugar levels or a stroke.
[52]
140.
Adv van den Heever pertinently put it to Dr Mugabi that
a doctor could say that he is not going to treat a patient if he did
not
believe the history or symptoms that were related by the patient.
Dr Mugabi’s answer is most informative. He said that:
“
Of course you
can say that, it is within your rights if you think someone is
malingering to say so.  But malingering is a complete
diagnoses
of exclusion.  You must be absolutely certain, and in a scenario
of syncope, it is a very hard thing to decide that
people are
malingering or not.  Of course, if you look in the books,
malingering is a well-known [inaudible] diagnoses.
It is
well-known, people make it up and, I mean, you just have to say you
collapsed and no-one was there”.
[53]
141.
In concluding her questioning Adv van den Heever finally
put it that, although she could not put her hands on it, there was
some
bruising noted on Porritt’s body to which Dr Mugabi
agreed.
142.
The first question put by Adv Coetzee was that the
clinical notes did not refer to any bruising, but to redness on the
buttock area.
The significance of this will appear later.
143.
Dr Mugabe then again
clarified that syncope requires the existence of a
physiological condition.
[54]
He also explained that the second and third episodes described by
Porritt did not conform to a syncope episode.
[55]
144.
Moreover the provision of
a drip for Porritt was not for purposes of treating a condition. It
was rather to maintain venous access
when a patient undergoes an
angiogram.
[56]
It was also
confirmed that Porritt was not a high risk patient and that Dr Mugabi
would not have discharged a patient if he was
suffering from a life
threatening condition or was seriously ill.
[57]
Furthermore
Dr Mugabi said that most patients who have had a syncope are
completely well when they are seen and in most cases it
is not life
threatening. In Porritt’s case he presented as a well patient.
Even his initial clinical assessment was that
of a well patient. They
however felt compelled to admit him and investigate him fully because
his initial ECG was not normal in
that he had an irregular heartbeat
together with the history that he presented. There would have been no
need to investigate Porritt
if the only issue was his irregular
heartbeat.
[58]
145.
Dr Mugabi also confirmed that Dr Yacoob’s results
were already known on 12 June. It is also evident that psychiatrists
have
rooms at Mediclinic
146.
He was also referred to F45 which reflected that Dr
Mbatha a psychiatrist at Mediclinic had made the following clinical
note of
her interview with Porritt (which was on 21 June). It reads;
“
Currently has
an ongoing court case.
Current stresses-
ongoing court case
Asking for help- to be
given time off so that he can get a break to work on his case, he is
exhausted.
147.
Dr Mugabi then explained
that, the conversation in which the court case was first mentioned
and that Porritt said he was being
framed by the police only arose on
the evening of 13 June. It arose when Porritt requested a note for
the referral to a psychologist
and took place after Dr Mugabe had
planned to discharge Porritt.
[59]
148.
Adv Coetzee also put
questions directly to Dr Mugabi about a malingering patient both by
reference to claiming unconsciousness and
faking headaches.
[60]
Dr Mugabi would however not be drawn into conceding that on the tests
they had done it could be determined whether or not Porritt
had been
malingering. It was however evident that Dr Mugabi considers that a
doctor is obliged to believe the history as presented
by the patient
and it would be necessary to observe a person for a very long time
before the dishonesty will be revealed. There
is however no test to
determine if a person has lost consciousness since it is a symptom.
He nonetheless strongly challenged
that Porritt left the
hospital seriously ill.
[61]
149.
Adv van den Heever then proceeded to ask questions
arising from the State’s questioning of Dr Mugabi.
She
confirmed with Dr Mugabi that the discussion he had with Porritt on
13 June took place at about 19; 20 (D62). It was however
evident
from the same hospital records (at D61) that earlier  at 14;00
Dr Yacoob had seen Porritt and was prepared to
have him discharged
but that Porritt said that he wished to see Dr Mugabi before he is
discharged.
150.
Moreover Dr Mugabi was not unduly concerned about the
fall from the bar stool as it was a story and there was no reason to
believe,
from his interaction with Porritt, that Porritt had suffered
any serious injury from the fall.
151.
The court then asked a
number of questions. Dr Mugabi claimed that he would have been
satisfied to discharge Porritt once the angiogram
results had come
through. This was on the afternoon of 12 June. It also appears that
Dr Yacoob had communicated telephonically
with Dr Mugabi that he had
assessed Porritt and was happy to discharge him. Dr Mugabi said that
he thought it odd that Porritt
did not come to hospital on the day
the episodes occurred. He explained that  a collapse is a
dramatic symptom and it is not
usual for a person who has collapsed
to spend the night at home and not come to hospital the same day and
in this case the pub
in question  was “
a
short distance away from the hospital”
[62]
152.
He also clarified that
Porritt was identified as a high risk fall patient, because of the
history he provided of loss of consciousness,
not a high risk
patient. He also confirmed that while Porritt was under their care he
was “well”
[63]
.
153.
Dr Mugabi was asked by
the court to elaborate on why he claimed that on the second and third
episodes Porritt did not demonstrate
classic symptoms of syncope. He
replied that a classic case of syncope results in a sudden loss of
consciousness in which case
there will be a loss of muscle tone and
when you awake it is instantaneous. In Porritt’s case he
claimed to have jerking
movements while unconscious which is not
typical of people whose blood supply has suddenly stopped for a
transient period. The
third episode described by Porritt resulted in
him not regaining his mental state immediately. This would suggest
that it was a
seizure or a stroke or something else.
[64]
154.
The doctor confirmed that
he had not conducted an investigation regarding any injuries that
were not visible. However there were
no visible injuries. It is
evident that Porritt did not complain of any. He also stated that if
Porritt had wanted to see a neurologist
sooner than Tuesday then one
would have been available on Monday 12 June. It is evident from Dr
Mugabe’s testimony that from
the time he saw Porritt there was
no suggestion of urgency to have any investigations completed.
[65]
155.
Dr Mugabe was excused and there was a short period when
Porritt was cross-examined by the State before the adjournment.
DR
PILLAY’S EVIDENCE.
156.
Dr Pillay started her evidence on the morning of 30
June. She produced all the documents that were in her possession
regarding her
involvement with Porritt. These documents together with
the file cover formed bundle H.
157.
It will be recalled that the hospital records from
Oatlands had already being introduced in the bundle prepared by
Porritt, being
bundle A. At this stage, I cannot recall if there
might have been one or two others that would have ended up in another
bundle.
158.
Dr Pillay related that
Porritt was a patient of Oatlands, having been admitted there on
Saturday 17 June by Dr Cynthia Brown who
is a general practitioner in
Howick. Dr Pillay had been contacted by Oatlands Care Centre on 15
June about this by Sister Jill
who is the nursing manager at
Oatlands.
[66]
Dr
Pillay was told that Porritt suffered from severe anxiety and
depression and was asked if she was able to take him on as the

treating psychiatrist. Sister Jill said that she was admitting the
patient on Saturday. Dr Pillay then agreed to see Porritt on
Monday
morning. It must be pointed out that this was not challenged despite
being at odds with Porritt’s claim that he was
still waiting to
have an appointment with Dr Olla.
159.
Dr Pillay also testified
that there would have been a psychiatrist on call at Oatlands over
the weekend. That being so, it also
is difficult to appreciate why
Porritt waited until Monday when he could have a psychiatrist examine
him at any time from the Thursday
and certainly over the
weekend.
[67]
.  Already on
Thursday, Doctor Pillay had informed Sister Jill that she would only
be available on Monday as she would be away
over the weekend.
160.
Dr Pillay then saw Porritt at about 7.45 on Monday 19
June. It  was a 30 minute consultation. She assessed Porritt by
taking
down the history, as there is no physical examination in
psychiatry- only a mental state examination . This is done while
interviewing
the patient. The contemporaneous note is H2. Porritt
indicated that during the previous week he had experienced three
blackouts
and described how they occurred. His family became
concerned when they heard about the episodes and advised him to go in
for a
check-up which he did at Mediclinic. The investigation done
there had come up clear and he was discharged. Although he mentioned

a cardiologist and neurologist he did not name them. He also did not
disclose that he had tried to arrange an appointment with
Dr Olla.
161.
Dr Pillay then asked him questions about his mental
state. He was asked about depressive symptoms to which he replied
that he had
been very down and had experienced sadness on most days,
that he was chronically tired , had difficulty concentrating , was
very
tearful at times and that his sleep was disturbed and his
appetite was decreasing.
Porritt
mentioned that he started suffering from severe headaches since the
angiogram was done. He was then asked about his stressors.
Porritt
mentioned that he was having an ongoing battle with the courts over
the past 14 years and that it was taking its toll on
him. He had been
in court on a daily basis which had not allowed him to recuperate or
be able to sufficiently put his arguments
together. Porritt described
his anxiety symptoms as comprising muscle tension and that he was
very worried about the outcome of
the court proceedings. He was also
worried about the financial repercussions and the effect his lengthy
court battles were having
on his family.
162.
Dr Pillay then proceeded
to ask about Porritt’s cognitive symptoms. He claimed that he
experienced difficulty concentrating
over the past few years and had
difficulty following the court proceedings. It was then that he
mentioned that he needed to be
in court that very day and that he
urgently needed to send a letter to the court saying that he has been
admitted to hospital.
[68]
As a
result Dr Pillay wrote her certificate which was referred to earlier
(A74A).
163.
Dr Pillay explained that “
not
fit to attend court currently
”
was
intended to only mean the day in question. She had just assessed him
for 30 minutes and was concerned about his blackouts and
that he had
been admitted the night before. She had not assessed that at a
cognitive level he was unable to attend trial. Her concern
was at an
investigative level. When asked by the court whether she was able to
say whether that included Porritt’s ability
to travel Dr Pillay
said the following :
“
I
must tell you that at the outset I was not aware, I was not made
aware that Mr Gary Porritt was supposed to be attending court
on the
day. “
[69]
164.
As she
continued, her testimony became clear: At the time Porritt asked her
for the medical certificate it was already 08h05 and
he said that he
was supposed to appear in court in Johannesburg at 08h30. Porritt had
not previously mentioned that he had to be
in court for his trial
that day. Had she known she would not have commenced his
assessment.
[70]
The note
itself was limited only to the day in question.
Moreover,
Dr Pillay claimed that the term ‘
unfit
”
was
used incorrectly. It was not intended to convey his physical state
pursuant to an investigation or examination. She meant to
indicate
that he was unable to attend court because it was necessary for him
to be fully investigated, which at the time she believed
should be
conducted by a neuro-psychologist.
[71]
She would however not immediately have let him out as there would
have to be an assessment also by a neuro-psychologist, a neurologist

and a psychologist.  It was evident that Dr Pillay only had the
30 minute consultation with Porritt and that she did not do
a
prognosis let alone a diagnosis.
165.
Dr Pillay then informed the nurses
that she was referring Porritt to Dr Mansfield who is a
neuro-psychologist and to Dr Maxwell
who is a neurologist. Porritt
was referred to the neuro-psychologist because the investigations
done at Mediclinic ruled out physical
causes and a neuropsychologist
undertakes  detailed testing, and is able to advise if blackouts
are due to psychiatric causes.
The referral to the neurologist was
because it appeared that his blackouts were not taken seriously and
she thought it best to
obtain a second opinion.
The
reference to an MRI was just a suggestion by Dr Maxwell as it had not
been done at Mediclinic.
[72]
She accepted that an MRI is very expensive and while some patients
are prepared to pay for it, it would need to be approved by
a
hospital plan before the cost would be borne by medical aid.
166.
Dr Pillay then related what occurred during the course
of 19 June when Bennett contacted her. She informed Dr Pillay that a
court
order had been sent for Porritt to be taken to a district
surgeon in Johannesburg for evaluation and to be referred to a state
psychiatrist if needed.   Bennett then sent a copy of the
court order per email. Dr Pillay did not respond to it because
they
had already had a discussion.
167.
On the next morning (20 June) Bennett sent another email
stating that she had drawn up an appeal and the application was
attached
(A136). Dr Pillay read through it and as she put it
(together with the elucidating questions from the court) :
“
I immediately
realised that my medical certificate had been misconstrued and that
it meant that he was not fit to attend court at
all.
When you say
misconstrued, what actually do you mean?  --- Misunderstood.
Misunderstood.
Why was it
misunderstood?  Or how did you understand it (indistinct)?
--- From the application of that appeal it mentioned
quite a few
points that Dr Pillay say that he was unable to stand trial.
And, and this was not, this is not what I had meant
when I sent
through this medical certificate.
What did you mean?
--- He was not fit to (intervenes)
(Indistinct).
--- Attend on the 19th.  Because he had already been admitted.
And responsibly needed further investigations.
…
..
So what do you mean by
that?  --- If a patient presents with a history of black outs
then a doctor becomes concerned of the
cause behind those black
outs.  To ensure that it could be treated appropriately.
And so that there is no recurrence
of black outs.”
[73]
168.
As a consequence Dr Pillay then sent an email to all the
persons whom Bennett had sent her email to. She did so by way of
blind
copying. This is A135. It reads”
“
Dear Sue
Please take note that
the letter stating Gary is unfit to attend court was for yesterday
19/06/17, as he was admitted on the evening
of 18/06/17 and required
initial assessment”
His physical and
mental state does not prevent him being examined and further
investigated by a state psychiatrist at another facility.
I do not oppose the
court order and due process should be followed
Kind regards”
169.
Dr Pillay said that Sister Jill informed her that the
police had come to fetch Porritt and take him to a district surgeon.
On the
afternoon of 20 June Sister Jill again contacted Dr Pillay to
advise that Porritt was very stressed and that he would like to see

her.at this stage. Dr Pillay advised sister Jill that no one had
informed her that it was a medical legal case and that she does
not
attend to such cases. She said that Porritt is welcome to see another
psychiatrist. Dr Pillay did say that Porritt should be
discharged out
of Oatlands. The purpose was for him to be transferred to a district
surgeon at a State facility if needed. She
believed that a referral
to a district surgeon was the most responsible thing she could do at
the time. She was satisfied that
Porritt was physically able to
travel to Johannesburg on 19 June when she had assessed him.
170.
Adv van den Heever took Dr Pillay through the
prescription chart at Oatlands. She was also taken through the
motivation letter for
funding of hospitalisation event which Dr
Pillay had completed and signed.  It reflected that Porritt’s
proposed length
of stay was 7 days.
171.
Dr Pillay was challenged with regard to whether she did
not simply discharge Porritt without concern as to what would happen
to
him  and why Sister Jo did not in her note (A72) refer to
Porritt being transferred to a district surgeon and another
psychiatrist.
Dr Pillay was then asked why she did not go to Oatlands
and see Porritt at the time of discharge. Her reply was :
“
Because
when it comes to his psychiatrist/patient relationship there has to
be trust involved.  There has to be a sense of
(indistinct)
between the patient and the psychiatrist.  If the psychiatrist
or the patient feels that they have been misled
in some way then it
is their, it is their prerogative to say that the patient, that they
would be unwilling to take care of that
patient.  And has
advised the patient that they may see another psychiatrist.”
[74]
And
when pressed to explain herself Dr Pillay said:
“
That
is an assumption on my part, firstly.  I cannot state on paper
that I was misled to believe anything specific.
But when I came to
realise the whole bigger picture and the whole sequence of events I
find that I may have been blindsided into
seeing this patient in the
first instance.  And I did not feel, as a psychiatrist, that I
could give my full care to the patient,
having already have this
understanding of him in my head.
I
felt that the patient had not been completely open with all the
events that was happening in his life.”
[75]
172.
Adv. Van der Heever then sought to test Dr Pillay on
this and on her discussion with Bennett regarding the court order,
and that
she only changed her mind about Porritt when she read the
court order. In short Dr Pillay responded that the court order was
not
the reason for her changing her mind about Porritt and persisted
that the doctor patient relationship was broken due to a lack of

trust. She explained that this was as a result of a sequence of
events that had occurred since Monday morning including the attempts

by Bennett to repeatedly contact her.
173.
The cross-examination then side-tracked as to whether or
not Bennett could speak for Porritt in her interactions with Dr
Pillay.
In the end the questioning by Adv. Van der Heever missed the
issue of the enquiry. It is not a test of what the threshold point
is
when a psychiatrist decides that the relationship required between
doctor and patient results in a parting of the ways because
of a lack
of trust. It is rather whether Porritt had failed to disclose to Dr
Pillay at the outset that he was required to attend
court that day
and effectively wanted, at least amongst other things, a letter
excusing him from court attendance when, had she
been informed at the
outset, she would not have attended to him. From her observations she
considered that there was no reason
why he could not attend court on
the 19
th
and be
investigated for any of the conditions subsequently.
174.
What however came out was
the string of WhatsApp communications which were introduced as B52.
These were between Dr Pillay and Sister
Jo of Oatlands.
[76]
They are entirely consistent with Dr Pillay at a very early stage
confirming that she was unaware that she had not been informed
of
what she termed the “
medical
legal aspect
”
,
that she does not deal with such cases and that her note for Porritt
only related to an absence from court on 19 June and not
beyond. It
is also evident, and the court takes note that it is common practice,
that if a person wishes to be excused for any
period for medical
reasons then the medical practitioner will identify a specific period
of time.
175.
Since Dr Pillay did not complete her testimony,
arrangements were made for her to resume being examined by Adv. Van
Der Heever on
the following Wednesday. On 4 July the court resumed
with the cross-examination of Porritt by Adv. Coetzee.
176.
On 5 July Adv. Van Der Heever continued with the
cross-examination of Dr Pillay. It turned out that Dr Pillay was well
aware of
referrals for observation under the provisions of the
Criminal Procedure Act. Dr
Pillay also clarified the notes she had
made on the hospital plan form where she described Porritt as
a-suicidal; Porritt told
her that he had thoughts of dying but he was
a-suicidal because he had not clear plan of how to carry it out,
there were no previous
attempts of killing himself, and he sought
help for his condition.
CROSS-EXAMINATON
OF PORRITT
177.
At the hearing of 4 July Adv. Coetzee continued to deal
with Dr Mbatha’s notes of her consultation with Porritt at
Mediclinic
that were made on 21 June (at F41-46).  Porritt
identified what he claimed was incorrectly recorded by her.
It
is noted that in the consultation note reference was only made to two
syncopal episodes
[77]
178.
Porritt was then questioned about the  Dr Mbatha’s
note which appears on F45 (which was mentioned in part earlier)
“
Currently has
on-going court case
Current stressors-
On-going court case
Asking for help- to be
given time off so that he can get a break to work on his case, he is
exhausted.”
He
was asked several times to explain what he meant and sought to
provide a context. In my view Porritt did not provide a satisfactory

reply.
179.
Porritt was also referred
to the court order of 12 June which required him to procure a written
report by a medical practitioner
by no later than 15 June.
[78]
This is already set out at the beginning of my judgment.
Once
again, if one has regard to what Porritt actually requested of the
doctors, it fell far short of what was required: This despite
Porritt
having been served with that order on 13 June.  Porritt conceded
that he did not ask either Dr Mugabi or Dr Yacoob
for a report, as
contemplated in the court order, from the time he was aware of it
until the time he was discharged.  His
only explanation was that
their report would not serve the required purpose.
180.
There are at least three
pages of questioning on this point. This is because, as appears from
the record, Mr Porritt did not answer
the question directly.
[79]
It was then put that their reports would not suit him.  Adv
Coetzee also dealt with the affidavits that Porritt handed
up: The
one from Mr Heenan which was deposed to on 22 June 2017; the other
affidavit was that of Ms Govender which is dated 20
June 2017.
Porritt explained that the affidavits were obtained by his son after
approaching the staff of the pub in question:
“
To
see if they could assist with finding any patron or staff who may
have witnessed these syncope attacks”
[80]
This
statement is relevant because of what occurs later.
181.
Porritt was also asked
about the outcome of an examination by a neurologist at Milpark on 26
June
[81]
.  Porritt said
that there was a verbal report.  A week later, when testifying,
neither Porritt nor his legal team was
able to produce a written
report.  The Court is entitled to assume, having regard to the
lengths that Porritt claims he has
gone to gather evidence, that if
the neurologist’s examination would have assisted him, a report
would have been procured
sometime between 26 June and when Porritt
testified on 7 July.  It will also be recalled that the
proceedings continued through
to Saturday, 8 July.
182.
The State then sought to introduce a clip that appeared
on Moneyweb of Porritt lying on the floor in court. It was taken by a
journalist.
As I understand Adv Van Der Heever’s position, it
is accepted that the clip is of Mr Porritt and was taken in court.

What is in dispute is whether it is a collage of snippets as opposed
to a continuous filming. The clip was played in court and
identified
as J1.
183.
It is evident that Adv
Van Der Heever also sought to rely on aspects of the clip.  What
it purported to demonstrate is Porritt
going down on all fours and,
whatever the sequence, it is evident that he does so gingerly, then
positions himself by effectively
moving backwards on all fours, then
he receives a bottle of water from which he drinks and hands it back
before putting his left
elbow on the floor and turning over to lie on
his back.  It is evident that the actions that are discernible
from the clip,
and which can reliably be accepted, were done gingerly
and that Porritt was positioning himself, which does not suggest a
person
who is suffering from an extreme headache as was contended for
at the time.
[82]
During
the course of that day, I believe it was, Porritt seated himself but
effectively gripped onto the counsel’s table with
his fingers
as if supporting his body which was lying bent or limp below the
height of the table.
184.
Another recording was produced by the State. This time
of CCTV footage taken at Milpark Hospital from 15h37 on 22 June 2017
for
I believe approximately half an hour, possibly longer. It was
played in court and identified as J3. Affidavits purporting to allow

for the introduction into evidence of both clips was marked J2.
185.
To put the relevance of the CCTV footage into context,
the typed transcription of the record reveals that the court
adjourned on
22 June at 12:17.  Accordingly the clip was taken
within three and a half hours of the adjournment. It shows Porritt
lounging
in a very relaxed manner on a chair.  It also shows
that those with him, and in particular Bennett, were not concerned
about
his wellbeing – Bennett moved off and left Porritt to his
own devices as did the attorney.  Porritt stood up without

difficulty, chatted and answered his cellphone.  He also picked
up the bag with which he arrived without difficulty.
No one
offered to take it for him and he was seen leaving the hospital still
carrying it.
186.
It then came out that the
person who Porritt mentioned earlier, Vanessa Pretorius, had in fact
been with him at the pub on 9 June.
Despite the distinct
impression that Porritt gave of arriving at the pub and only meeting
his friend there, it turns out that they
had in fact driven there
together.  Moreover, under cross examination he stated that she
in fact witnessed him falling from
the bar stool
[83]
.
It will be recalled that he had said that he related to the friend he
was with the first episode when he returned from the gents.
He now
also stated that Vanessa Pretorius had accompanied him out when he
left after paying the bill and that she was the person
who drove
him.
[84]
187.
Under cross-examination by Adv Coetzee, it also appeared
that she would have known the house where Porritt stayed.  The
claim
that he overshot the house because he could not give directions
does not seem to hold water.
188.
There was an attempt to then seek leave to postpone the
matter so that Vanessa Pretorius could give evidence.
I
refused the application and I will give brief reasons now.
The
first is that all the evidence pursuant to examination and
cross-examination was already before the Court and readily available

to everybody who wished to see it.  Secondly, I have sighted
certain extracts of Porritt’s evidence, which make it clear

that on his version there was a search high and low for persons who
could assist and his explanation of some form of embarrassment
in
calling Vanessa Pretorius holds no water.
Accordingly
the opportunity to have called Vanessa Pretorius had come and gone.
An election I believe had been made. Whether
or not Adv Van Der
Heever, who said that she had never been informed of the name, had
not been told the name in consultation
[85]
or received any information regarding who the person was, I would
have thought that competent counsel would ask this as a first

question unless there was some suggestion that such a question should
not be asked.  That counts against Mr Porritt.
Mr
Porritt’s subsequent explanation regarding not wishing to
disclose the identity of Vanessa Pretorius or that she was with
him
at any stage, does not accord with the two instances in the record,
which I have cited already, where Porritt had no difficulty
in
stating that Vanessa Pretorius was with him in Pietermaritzburg at a
hospital.  I also overlooked at the time I read out
the judgment
my note that the explanation does not accord with Porritt’s
earlier  explanation given under cross examination
that he would
have had no difficulty providing Ms Pretorius’  name if he
had been asked to identify the friend who was
with him at the pub. I
will amplify:
The
first relevant exchange between Porritt and Adv Coetzee is as
follows:
“
Mr
Porritt, when you started testifying and M'Lord, I am referring to
page 59 and 60 of the record.  You only referred to a
friend
initially, not to Vanessa Pretorius.  ---  That is right.
Nobody
asked me
.
No, you were
specifically asked, we did mention this to you.  Then on page 59
your answer was:
“
I
was with a friend at the bar.”
You never mentioned
Vanessa Pretorius?  ---  A friend ...[intervene]
Ja.  Did you not
mention her name, because you wanted as little witnesses to be
identified as possible, to test your version?
---  No.
You
never even ...[intervene].  ---  I identified I was with a
friend.
You
could have asked me who was the friend.  Nobody asked me who was
the friend.  Now you have asked me who was the friend
and I have
told you
.”
And
a little later in regard to who the identity of the person who
drove him home form the pub there is a further inconsistency:
“
Drove
home, drove home…  From the Keg to your home you have not
identified ...[intervene].  ---
I
think I did identify.
You
did not.  ---  Definitely Ms Pretorius.”
[86]
The same explanation was
persisted with again as appears from the following exchange:
“
What
I said to you is, you did not identify the person or persons that
drove you to your home in your evidence in chief.  ---

Correct.
Why
did you not do that?  ---  I did not give a specific
identity of the person [indistinct] when I did not give that
specific
identity of Karin Ballard, the court said I must give it and I
immediately gave it.
Had
I been asked, I would have given it as I had now.
”
[87]
(emphasis
added)
189.
I have indicated that
Porritt also wished to introduce evidence by way of the affidavits of
Govender and Heenan.  I believe
no store can be placed on what
they say; it has little or no probative value because, unlike the
other evidence before the court,
it is untested. I have already
indicated at the commencement of the judgment, when I considered the
legal issues, that the nature
of the matter will determine what
evidence will pass muster and what will not. The issue concerns
Porritt’s state of mind.
[88]
190.
Even if these affidavits were put into the mix, which I
believe they should not, they do not assist Porritt.  He had the
most
obvious witness to call to testify on his behalf.  On his
subsequent explanation, he decided not to reveal her identity.

Moreover, during the argument for postponement and at an earlier
stage, Adv Van Der Heever wished to ask Porritt a question regarding

the existence or otherwise of CCTV footage at the pub. During an
exchange with the Court, the question was withdrawn.
Adv
van der Heever then sought a postponement to establish if there was
CCTV footage.
191.
While I have given Adv Van Der Heever the benefit of
making certain submissions from the bar, I believe it is also
appropriate to
refer to certain submissions made by Adv Coetzee from
the bar in reply; namely that the State had attempted to obtain the
CCTV
footage from the pub, but because it is on a “
continuous
belt
”
, it gets recorded over after a
short period. He argued in the alternative that if evidence was
sought to be brought in by Adv Van
Der Heever, the State would also
seek to introduce evidence that Porritt’s son had in fact been
to the pub and had been shown
the CCTV footage of the night of 9 June
before it was recorded over, but did not seek to make a copy of it.
As
I indicated, these are matters which come from the bar and I did not
wish to place any store by them.  I mention them  in
order
to impress on both parties, that to the extent that Adv Van Der
Heever sought to introduce evidence that is not real evidence
and not
tested evidence, so too did Adv Coetzee seek to do the same. Moreover
if this matter was not dealt with in an expeditious
manner, then this
hearing would proceed interminably- the cut-off point in most cases
being the probative value of the evidence
sought to be led.
192.
The expedition which this matter required was explained
on numerous occasions to both parties during the course of the
proceedings.
Again, it was for Porritt to make the election to
call the obvious witness or to disclose her name   to his
counsel and
for counsel to at least make an enquiry of him as to who
that person might be. As appears from the record, she did not.
It
is too late to try and introduce that evidence when effectively
the horse has bolted and all of Porritt’s evidence in
cross-examination
has been transcribed and is readily available for
somebody to prepare on. The probative value of her evidence would
already be
compromised, particularly if one has regard to Porritt’s
first explanation as to why he did not mention Ms Pretorius’

name until he was cross-examined (as appears from the extracts I have
added which appear earlier).
FINDINGS
193.
As an overview, I raised at the beginning certain
objective factors. They required to be filled in- there needed to be
explanations
and Porritt was the only person who could provide them.
What has in fact occurred is that such explanations are completely

unsatisfactory.  They failed to address key aspects of what
Porritt claims motivated him throughout. These have been set out
in
the body of this judgment.
194.
Among them, is that Porritt was appreciative of the need
to provide a report to the Court, but on each occasion where there is
a
note by a medical practitioner, given on his requesting, the note
certainly does not qualify as a report which Porritt, by his own

admission, knew was required in terms of the court order.
In
fact, Porritt indicated that already on 12
June
he believed that he needed to provide reasons for his nonappearance.
At that time he was attended to by Dr Mugabi and Dr Yacoob,
yet did
not ask them for such a report.
195.
There is also the conduct of Porritt and those close to
him.  Often in cases the facts are determined as much by what a
person
does, as by what he or she does not do.  Again I set out
the critical milestones.
196.
Porritt has failed to give a satisfactory explanation
that is reasonably possible as to why he did not go immediately to
the emergency
ward at Mediclinic on 9 June.  Having now
disclosed that the person in the vehicle is somebody close to him, it
is difficult
to appreciate why she did not simply take him there to
at least have tests conducted. At worst it might have been a ten to
fifteen
minute delay.
197.
Porritt’s
description of how he felt at various times does not accord with his
failure to take immediate and prompt steps
to try and remedy what he
claimed was his plight and what he continually referred to as a near
death experience.
[89]
As
I indicated at the outset, they include a failure to go promptly to a
psychiatrist or psychologist, to have a reassessment
by a neurologist
and if one has an overview of the well over 300 pages of medical
reports, nowhere will one find a diagnosis from
a doctor or any other
medical practitioner of any condition that would have prevented
Porritt from coming to court on 12 June or
any of the other dates
mentioned earlier.
198.
I indicated at the beginning of this judgment that I
would deal with two scenarios.  The one, if Adv Van Der Heever
is correct,
is that a warning is essential.  This would  confine
the enquiry to whether or not the requirements of
s 67
has been met
in the sense set out by the Constitutional Court in
Singo
which I believe is prescriptive in this
matter.
199.
In doing so, the court is entitled to have regard to the
entire course of conduct of Porritt, what he did or did not do, what
one
would have expected him to do and his explanations for not doing
it.  There is a litany of excuses and of people who were not

available. However on analysis the explanations relied upon by
Porritt do not appear to coincide with the timing relied upon. In

this regard he claimed to still want to see Dr Olla, the
psychiatrist, on Friday 16 June and again on the Sunday when
according
to Dr Pillay there had already been a confirmed appointment
for the Monday with her as the treating psychiatrist at Oatlands. The

evidence was that from at least 16 June everyone, which would have
included Porritt, was comfortable with Dr Pillay, and with Porritt

only being admitted on the Saturday with the first consultation to be
held on the Monday. The Monday happened to be the date on
which the
Court had adjourned the matter in terms of its order of 12 June.
200.
The evidence as set out
in this judgment reveals that not only the conduct of Porritt but
also of those close to him, are inconsistent
with a person who claims
to have had the life threatening experiences at the time and on the
occasions that he claims.
[90]
201.
It is also evident from the evidence of Dr Mugabi and
Dr Pillay, as well as the various hospital records and the
notes of
other medical practitioners, that at no stage was there a
sufficient concern for Porritt’s wellbeing that would have
precluded
him from attending court on the dates in question; far from
it, as the testimony which I have mentioned reveals. At best he was

throughout under examination or observation, not treatment (save for
strong analgesics with which he was discharged as an out-patient)..
202.
The hospital and medical
staff were committed because Porritt had provided a history to them.
They were committed to undertake
investigations, as was said in one
of the extracts, in light of the history provided by Porritt. They
would have wanted to make
certain that they eliminated the various
relevant considerations from the reckoning.  Despite such
caution on their part,
Porritt was discharged from three medical
facilities, granted that according to Dr Pillay, on the one occasion
it was into the
hands of a district surgeon .
[91]
203.
I thought it best to set
out the evidence in great detail, bearing in mind that the transcript
itself runs into over 800 pages,
possibly more
[92]
.
During the course of the judgment I referred to the test which I
believe is applicable to weighing the evidence. Applying
the
evidential burden  identified earlier and giving Porritt  the
benefit of the lower level of evidence required he
has not satisfied,
the evidential burden as required by
s 67(2)(a)
of establishing a
reasonable possibility that his failure to appear on 12 June was not
due to fault on his part.
204.
This applies to Porritt’s failure to appear on 12
June.  There is also his failure to appear on 13 and 14 June as
well
as on 19 June.
It
ought to be apparent from the body of the judgment and the facts as
indicated that the test adopted by
s 67(2)
(a) has not been satisfied
in relation to Porritt’s failure to appear or remain in
attendance on each of these days as well.
The cut-off must be 19 June
because the warrant of arrest to which the
Section 67
enquiry
relates, was issued on that day. Accordingly these proceedings cannot
relate to events, or any failure to appear, after
the date of the
issue of the warrant.
205.
I am satisfied that Porritt did intend not to appear in
court on each of the dates and that this was for the purpose of
delaying
the proceedings.  This conclusion arises from Porritt’s
own evidence regarding what he did and did not do and his failure
to
satisfy the court that his explanations create a reasonable
possibility that his failure to appear was not due to his fault.
I
had also omitted to mention that I do not accept that a person who
falls backwards off a bar stool, let alone any ordinary lower
chair
which has a back support (unlike the bar stool described by Porritt)
would not have bruising (not just redness), would not
request at
least an anti-inflammatory and complain of pain in the lower back or
coccyx region and have difficulty sitting comfortably.
The claim of
falling on his face when collapsing in the gents and hearing a loud
crack and the collapse outside on a rough surface
without any visible
bruising or scratches, let alone a degree of pain or discomfort, is
in my view, and having regard to the totality
of evidence regarding
Porritt’s actual conduct completely at odds with what he
claimed occurred (which he claims he was unaware
of and required
others to relate to him). In short there is no reasonable possibility
that he sustained the sequelae he claimed
and therefore he could not
have fallen as claimed by others, none of whom testified, not even
his son who was said to have witnessed
the last episode.
ORDER
206.
Porritt has failed to satisfy the court that there is a
reasonable possibility that his failure to appear in court on 12 June
2017
was not due to fault on his part as contemplated by
s 67(2)
(a)
of the CPA and as read into by
Singo.
207.
Independently of that Porritt has also failed to satisfy
the court that there is a reasonable possibility that his failure to
appear
in court on 13 June, 14 June and 19 June was not due to fault
on his part.
208.
Moreover bail was provisionally cancelled and the bail
money was provisionally forfeited
209.
Accordingly it is ordered that
1.
In
terms of
s 67(2)
(a) of the CPA that the provisional cancellation of
the bail that was ordered on 19 June 2017 is confirmed and Mr Porritt
is to
be held in custody as an awaiting trial prisoner unless a court
decides to grant him bail or provides any special dispensation as
to
the place of his detention under a fresh application.
2.
The
provisional forfeiture of the bail money which was reduced  at
some stage from the sum of R800 000 to the sum of
R100 000
is confirmed subject to the rights, if any, of the Office of the
Chief Justice to claim the disbursements incurred
in any of the
transcriptions of the record and the flight, accommodation and any
other costs it has incurred as a consequence of
the subpoenas that
were issued and served which required the  attendance of Dr
Mugabi and Dr Pillay at the instance of the
court under
s 67(3)
of
the CPA
3.
The
proceedings are adjourned to 1 August 2017 and will continue on the
dates referred to in this court’s order of 5 June
2017 and;
a.
Mr Porritt is remanded in custody:
b.
In view of the issues raised Ms Bennett who is
present in court is warned in terms of
s72
(1) (a) of the CPA to
appear before this court at 10:00 on each of the dates specified
hereunder in connection with the offences
to which the proceedings
under this case number  relate and is furthermore warned to
remain in attendance during each of such
dates and that in terms of
s72(4)
if she fails to appear or, as the case may be, to remain in
attendance at the proceedings in accordance with this warning a
warrant
for her arrest may be issued, in which case she may be
sentences to a fine not exceeding R300 or to imprisonment for a
period not
exceeding three months unless she satisfies the court that
there is a reasonable possibility that her failure was not due to
fault
on her part. The specified dates are:
i.
01
– 04 August 2017;
ii.
7th,
8th, 10th, and 11th August;
iii.
21
– 25 August 2017;
iv.
04
to 08 September 2017;
v.
11
to 15 September 2017;
vi.
18
to 20 September 2017;
vii.
26
to 28 September 2017; and
viii.
02
to 06 October 2017
all dates inclusive.
______________
SPILG
J
DATES
OF HEARING: 21, 22, 27, 28, 29 and 30 June, 4, 5, 7 and 8 July 2017
DATE
OF JUDGMENT: 21 July 2107
FOR
ACCUSED NO 1: Adv A van der Heever
BDK
Attorneys
FOR
THE STATE: Adv EM Coetzee SC
Adv
JM Ferreira
Adv
PJ Louw
[2]
At 9-106
[3]
At 9-28
[4]
At para 31
[5]
12  Freedom and security
of the person
(1)
Everyone has the right to freedom and security of the person,
which includes the right-
(a) not to be deprived of freedom
arbitrarily or without just cause;
(b) not to be detained without
trial;
(c) to be free from all forms of
violence from either public or private sources;
(d) not to be tortured in any way;
and
(e) not to be treated or punished
in a cruel, inhuman or degrading way.
35
Arrested, detained and accused persons
(1)
Everyone who is arrested for allegedly committing an offence has
the right-
…
..
(f) to be released from detention
if the interests of justice permit, subject to reasonable
conditions.
a.
[6]
A position endorsed  by Foxcroft
J in
Terry v Botes And
Another
2003 (1) SACR
206
(C) at 211b and c
[7]
This is also borne out by the need
for consistency of application in respect of the various subsections
to
s 67(1)
where it is self-evident that subsection (a)(i) would not
necessarily be preceded by a warning whether in open court or
otherwise.
[8]
Cronje
at
741G. See also
S v Theko
2010 (2) SACR 339
(GNP) at para 10
[9]
27/6 vol 1 p 58
[10]
27/6 vol 1 p59
[11]
27/6 vol 1  p59
[12]
27/6 vol 1 p60
[13]
27/6 vol 1 p 62
[14]
27/6 vol 1 p60
[15]
27/6 vol 1 p61
[16]
27/06 vol 1 p62
[17]
27/06 vol 1p62
[18]
27/06 vol 1 p 63
[19]
27/06 vol 1 pp63-64
[20]
28/06 vol 2 pg 112.
[21]
Prima facie
this
is at odds with later testimony that Dr Anderson was the family
doctor who he then tried to contact, albeit that he had not
needed
any doctor for a very long time.
[22]
27/06 vol1 p 71
[23]
28/06 vol 2 p 94
[24]
28/06 vol 2 p 98
[25]
28/06 vol 2 p107-108
[26]
28/06 vol 2 p109
[27]
28/06 vol 2 p102-103. Dr Mugabi’s
notes do not mention Dr Elder.
[28]
28/06 vol 2 p103-104
[29]
28/06 vol 2 p 97
[30]
28/06 vol 2p111
[31]
28/06 vol 2 p111
[32]
28/06 vol 2 pg 113-114.
[33]
28/06 vol 2 pg 116-117.
[34]
28/06 vol 2 pg 119.
[35]
28/06
vol 2. Pg 119.
[36]
28/06 vol 2 pg 120
[37]
28/06 vol 2 pg 123.
[38]
28/06 vol 2 pg 124.
[39]
28/06 vol 2 pg 133.
[40]
As will appear later from the
evidence of Dr Pillay and her documentation, she had already been
advised by Oatlands on 15 June
that she would be the treating
psychiatrist.
[41]
28/
06 vol 2 pg 141.
[42]
28/06 vol 2 pg 142-143
[43]
28/06 vol 2 pg 151.
[44]
28/06 vol 3 p 154
[45]
28/06 vol 3 p168
[46]
It bears repeating that Porritt
claimed, at the stage he was discharged from Oatlands, that he was
still very unwell and fearful
for his state of health, having had a
near death experience which had yet to be diagnosed.
[47]
29/06 vol 4 p 206
[48]
29/06 Vol 4 p 208
[49]
E.g. 29/06 vol 4 p211 to 212
[50]
29/06 vol 4 p219
[51]
29/06 vol 4 p220
[52]
29/06 vol 4 p221
[53]
29/06 vol 4 p222
[54]
29/06 vol 4 p224
[55]
29/06 vol 4 p225
[56]
29/06 vol 4 p227
[57]
29/06 vol 4 p231
[58]
29/06 vol 4 p237-239
[59]
29/06 vol 4 pp243-245
[60]
29/06 vol 4 p250-251
[61]
29/06 vol 4 p251
[62]
29/06 vol 4 p258
[63]
29/06 vol 4 p264
[64]
29/06 vol 4 p265
[65]
29/06 vol 4 p267
[66]
30/06 vol 5 pp296-298
[67]
It is also evident from Mediclinic
records of 20 to 21 June and Dr Mugabi’s testimony together
with Dr Mbatha’s notes
that Mediclinic would also have had a
psychiatrist available from the date of his discharge and over the
long weekend of 16 June.
Porritt did not claim to have contacted
Mediclinic to arrange for readmission with its resident psychiatrist
on duty during this
period.
[68]
30/06 vol 5 p304
[69]
30/06 vol 5  p 306
[70]
30/06 vol 5 p306
[71]
30/06 vol 5 p307
[72]
30/06 vol 5 p311
[73]
30/06 vol 5 pp 314 -315
[74]
30/06 vol 5 p327
[75]
30/06 vol 5 p328
[76]
The WhatsApp messages refer to “Jo
Oatlands”. It is assumed that Sister Jo is the Sister Jill
referred to earlier
and which was transcribed as such at the time.
Nothing turns on it.
[77]
At F41-42. The notes of Dr Mbatha
also do not record the episode which Porritt claimed in his
testimony occurred in his son’s
car between Oatlands and
Mediclinic (which would have been the day before). Nor is there any
mention of extensive headaches.
One would expect that if the most
recent syncope episode had been mentioned that it would be noted
with an immediate referral
back to Dr Mugabi or other cardiologist
and to a neurologist.
[78]
7/07 vol 9 p703
[79]
7/07 vol 9 p703-vol 10 p714
[80]
7/07 vol 10 p 725
[81]
This would have been a neurologist of
Porritt’s choice
[82]
I am satisfied that for the limited
purpose set out in this judgment the J1 clip can be admitted into
evidence.
[83]
8/07 vol 11 p 808
[84]
Under cross-examination Porritt first
claimed that he met Ms Pretorius at the pub (8/07 vol 11 p794).
Later he referred
to them getting to the pub and that he had drunk a
lot of wine before the meal came (8/07 vol 11 p804) and that they
were there
for approximately three hours although the first
blackouts only occurred  in the last half hour and after they
had
eaten (8/07 vol 11 pp804-805). She also drove him home (8/07 vol
11 p807).
[85]
Porritt claimed that he had only a 40
minute consultation with Adv van der Heever in the cells. The
paucity of consultations was
mentioned on two further occasions by
Porritt. On at least two of the occasions Adv van den Heever shook
her head. One of those
occasions was noted.  See 8/07 vol 11 pp
810-813. It is evident from Adv van der Heever’s reaction at
the time that
Porritt did not disclose the actual extent of the
consultations that were held.
[86]
8/07 vol 11 p806  and p807
respectively
[87]
8/07 vol 11 p809
[88]
By contrast in
Terry
v Botes
the Cape full
bench was concerned with a case where the accused had been
surgically operated on the previous day and there was
no dispute
about his physical incapacity to attend court.
[89]
Porritt demonstrated from 10 to 14
June a great concern about the need to be properly and
comprehensively examined and to have
a medical diagnosis. He
professed displeasure at the failure to provide a diagnosis before
being discharged from Mediclinic on
14 June. He also professed an
urgent need the moment he was discharged from Mediclinic to be
examined by a neurologist and someone
in the field of psychiatry or
psychology. The
volte face
cannot be explained on the basis of
the input of others who convinced him to receive attention. His
evidence is that he personally
was insisting on a thorough
physiological and psychometric diagnosis because of the “
near
death”
experience he
had experienced.
Although
the notes of Dr Mbatha were not confirmed by her, and while there is
the possibility of omissions in the narrative, I
consider it beyond
doubt that Dr Mbatha would have made a note of the most recent
syncope episode which Porritt alleged had occurred
the previous day
on the way from Oatlands to Mediclinic if he in fact had related it
to her. The risk of not recording it and
of not also recommending a
referral to at least further observation by a cardiologist and
neurologist was too great for it not
to have been noted.
[90]
Not only is the CCTV footage at
Milpark revealing with regard to how Porritt was left to his own
devices, but despite his son
being witness to another alleged
syncope episode the day before, Porritt was driven by the police
from Pietermaritzburg, with
neither Porritt nor any family
member requesting that a nurse or other medical practitioner
accompany him to Johannesburg
(despite this being provided for in
the court order).
[91]
It is evident from the extracts cited
earlier that Dr Mugabi was satisfied that all relevant tests that
could be done had been
done. Porritt’s claim that Dr Pillay
was critical that an MRI had not been done is belied by her
evidence, as it is by
that of Dr Mugabi, as to him and Dr Yacoob
being satisfied that Porritt could be discharged.
[92]
When the transcript of the last day
of hearing (8 July) came through the total number of pages of
evidence was 955. The bundles
comprising A though to H numbered just
over 400 pages.