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[2018] ZAGPJHC 45
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Porritt v S (SS40/2006) [2018] ZAGPJHC 45 (2 March 2018)
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REPUBLIC OF SOUTHAFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Case
number: SS40 / 2006
Reportable
Of
interest to other judges
Not
revised.
2
March 2018
In
the matter between:
GARRY
PARTICK
PORRITT
APPLICANT
and
THE
STATE
RESPONDENT
J U D G M E N T
CORAM
: RE MONAMA, J:
Introduction
[1]
This is bail application. Mr Porrit seeks and order admitting
him to bail pending the finalisation of his just recently
started
trial. He is 66 years old and is facing some extremely serious counts
which include fraud, theft, tax evasion, contravention
of Exchange
Control Regulations, share manipulation and the contravention of the
Prevention of Organised Crime Act. The offences
fall within the
provisions of Schedule 6 to the Criminal Procedure Act (“the
CPA”). The matter has a long and quite
disturbing history. The
amounts herein involved are estimated to be in the region of several
billions of rand. He was arrested
during 14 December 2002 and
some six days later on 20 December 2002 he was admitted to bail.
[2]
From 20 December 2002 to date the matter has been on the criminal
roll in the lower court and in this court. In this court that
has
been the position since 2006. Notwithstanding the said several
appearances in the High Court and the Supreme
Court of
Appeal
[1]
the trial has
just recently started. The other several appearances
dealt primarily with the procedural issues
and mainly at the
instances of the Applicant.
[3] Notwithstanding
the chequered history mentioned, I will restrict my judgment to
the latest and relevant issues.
Any reference to the history
will only be made when it is necessary to do so. The trial is before
my Brother Spilg J. The
trial is proceeding but has had and
continue to have several problems in the form of
defaults and delays.
One of those many problems is the
source of this application.
The
current application
[4]
From 20 December 2002 until 21 July 2017 the Applicant was out on
bail pending the finalisation of his criminal trial
which was in
progress. This is part of the presumption of innocence. During
12 and 19 June 2017 he failed to attend his
trial. An inquiry
was held in terms of the provisions of section 67 of the
CPA.
[2]
On 21 July 2017
the court ruled that:
·
The
Applicant was in wilful default by not attending
Th
e
court on 12 and 19 June 2017; and
·
His
bail money in the sum of R100, 000 is finally estreated or
forfeited to the State.
On
6 September 2017 his application for leave to appeal the
whole
judgment
and
order
was refused.
[5]
In the interim, the matter became subject of the case management
process before Judge Mokgoatlheng who on
11
August 2017
issued the following directive :
“
If
GP Porritt (the Applicant) intends proceeding with the Appeal against
the Order granted by J Spilg in the Section 67 Inquiry
same shall
proceed prior to the institution of the proposed Bail Application,
alternatively if GP Porritt decides not to proceed
with the
prosecution of the Section 67 Inquiry Appeal, then the Bail
Application may be proceeded with.”
On
9 November
2017
, the Applicant filed his application for special leave to
appeal the
whole of the judgment and orders
in the Supreme
Court of Appeal. The application is now pending.
The
preparation of this application
[6]
During 23 November 2017, the Applicant’s attorney
requested a bail application hearing by way
of a letter. The founding
affidavit used in this matter is not annexed to the notice of motion.
The entire record is
about 2100 pages long. The found or
supporting affidavit is not dated but it is apparently
commissioned by a captain
in this building. Although the record was
paginated there was no index. Notwithstanding my repeated
requests for the
practice
note
it only arrived in the morning of the hearing . The heads of argument
also arrived late. This omission is unacceptable. These documents
define the issues. They are necessary important in matters which are
by nature urgent.
(7)
The Applicant approaches this court for an order admitting him
to bail. The said relief is based on the alleged “
new”
facts. These facts are repeated in paragraph 11
below
[3]
.
The
Respondent is strongly opposing the application and the relief
sought. The first point raised by way of point
in
limine
is the plea of
lis
pendes
.
The State contends that issues raised
in
this
application are pending in the Supreme Court of Appeal. Accordingly,
the:
“
the…bail
application …..cannot be proceeded
with
as the applicant is currently awaiting adjudication
of
his application for special leave to appeal.”
The State submitted
that this application on the alleged “new” facts is
premature and likely to cause confusion. The
State also questioned
the motive. They submitted that this application is nothing but a
stratagem to delay the trial.
The
freedom enshrined of the Constitution
[8]
Before I deal with the submissions it is apposite to reiterate the
importance of any person’s freedom or liberty. First,
the
freedom of an individual is guaranteed in the Bill of Rights
[4]
.
The Constitution provides in
Section
35(1)(f) that
“
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.”
Therefore,
any arrest or detention must be considered urgent and
must be treated as such. However, the detainee
must assist the
court. He cannot just adopt a supine attitude. Where the detainee is
represented, as he is in this case,
I expected a
properly paginated
[5]
record in
compliance with the dictates of the practice manual of this division.
I also expected that prolixity will be avoided.
[9]
In
S
v Ho
and
S
v Maliwa
[6]
the courts emphasised that shoddy preparation will not be tolerated.
The mix grill dish type preparation is contrary to what I
expected. A
properly prepared court file assist a great deal because this court,
like any other court, is in terms
[7]
of
the Constitution enjoined to adopt a position that “promotes
the spirit, the purport and objects of the Bill of rights”.
[10]
The court file herein was not properly arranged. The Applicant was
expected to arrange for that. I was not provided with
his
Practice
Notice
and the heads timeously notwithstanding the voluminous record
comprising five arch lever files. In the absence of the
Practise
Notice
I was left to second guess the nature of this
application. It was only later during the submissions that, counsel
for the Applicant revealed the true nature of the application. He
stated that this application for bail is based on
new
facts
[8]
. The new facts application is governed by the provisions Section
65(2) of the CPA. The Section provides that:
“
An
appeal shall not lie in respect of
new
facts
which arise or are
discovered
after the decision against which the appeals is
brought,
unless
such
new
facts
are placed before the magistrate or regional magistrate, and such
magistrate or regional magistrate give a decision
against
the accused on such new facts.”
The
section, in my view, provides a remedy for a detainee whose bail in
terms of Section 60(1) of the CPA has been refused for whatever
reason to approach the court again for the relief on the
new
facts.
[11]
Where the bail was withdrawn, as is the position in his case, the
above section does not apply. The bail was withdrawn.
The
withdrawal is not a bar to approach the court and launch
another new application. The process has to start
de
novo
[9]
.
The withdrawal will be a relevant factor to be taken into
account when the matter is considered. The Applicant
used
the wrong approach.
The
alleged “new” facts
[12] The Applicant
relies on the facts below for the relief he seeks. He alleged that
his personal circumstances have changed and
states that:
“
1.
My
personal circumstances have changed in the nearly 15 years since my
arrest and release on bail. I am now 66 years old and am,
as a result
of these criminal proceedings, unemployable in the normal course of
employment and am unbankable. Nearly five years
ago my wife and I
separated, but we have an amicable relationship.
2.
I
now live on my own at [...] O. Road, Pietermaritzburg, a house
built by my late father where I was born and have lived for
most of
my life. I look after myself. I have no domestic staff other than a
gardener who caretakes the property while I am away
and works part
time in the garden. The gardener has worked for the family for thirty
years and also works for my wife and daughter.
His wages are paid by
our children.
3.
I
also spend time at the main family farm, H., near Swartberg in
Kwazulu Natal. The farm was acquired in 1980 by the Gary Patrick
Porritt Children’s Trust (“the children’s fund”),
established by Douglas Porritt, my late father, for the
benefit of
his grandchildren born of me. Although I was a trustee of the trust
for a very short time after establishment, I have
not been a trustee
or employee of the trust for over thirty years I have never made any
donations to the trust but have benefited
from the trust as a d
discretionary beneficiary. The current trustees are Bernice Porritt
(the mother of our children who are beneficiaries)
and Frank Cohen, a
senior practicing attorney in Johannesburg. This and other farms
acquired at the same time and subsequently
are farmed by the
children’s farming enterprise which includes the farming of
cattle, sheep, maize and timber.
4.
I
have four children and now have nine grandchildren with another
grandchild on the way. The family are close and consist of:
4.1
Lauren Taylor, who is 41 years old. She lives in Hilton, very near to
me in Pietermaritzburg. She is married to a South African
citizen,
who is a chartered accountant (CA) with his own business in
Pietermaritzburg, and she has her own business of a horse
livery in
Hilton. I have two young grandsons through Lauren and her husband.
4.2
Brett Porritt, who is 39 years old, He is married to a South African
citizen, and lives close to me in Hilton with their three
young
children. Brett has his own business.
4.3
Greg Porrit, who is 36 years old and lives in Hilton close to me.
Greg is married to a South African citizen and they have two
children. Greg is the chief financial officer of the children’s
farming enterprise and divides his time between the farming
operations in Swartberg, his office in Pietermaritzburg and his
Hilton home. He is an accredited Chartered Management Accountant
(ACMA) as certified by the Charterd Institute of Management
Accountant (CGMA) as certified by the American Intitute of Certified
Public Accountants. Greg is also very involved in the livestock
management and general running of the children’s farming
enterprise.
4.4Murray
Porritt, who is 31 years old and lives on H. farm at Swartbergwith
his wife and their two South African born children.
They have lived
at H. for 6 years. They are expecting a third child during September.
Murray is principally involved with the maize
operations on the farm,
but also involves himself in the operations on the farm, but also
involves himself in the other operations
when required, particularly
the infrastructure and development of the farms as well as the
day-to-day farming operations.
5.
Whilst
three of my children have lived extensively abroad, they have all
returned to live and bring up their families close to
Pietermaritzburg, he is not far away at the family farms at Swartberg
and the cousins frequently visit each other.
6.
I
have three sisters who all live in South Africa, and who all have
children
7.
My
mother died some thirty years ago of cancer and my father died some
eight year ago of skin and other cancers. During the past
few years,
I have increasingly had to have treatments by a dermatologist for
multiple pre-cancerous growths on my skin as well
as an actual
cancerous growth cut out.
8.
I
stated in my founding affidavit in my original application of
December 2002 that four generations of the Porritt family have lived
in Pietermaritzburg. It is now five generations. My great-grandfather
established a successful wagon and coach-building business
in
Pietermaritzburg in the 1800’s. My late grandfather was one of
the six inaugural students of the faculty of law in the
University of
Natal.
9.
The
large extended family of my wife, Bernice Porritt (we are not
divorced), has long historic ties in South Africa. I am very close
to
them. The vast majority of her family, including her two sisters live
in South Africa. Despite separation, we have maintained
an amicable
relationship.
10.
I
have no assets, the funds raised by my children for payment of my
initial R1 million bail, which the State insisted be paid in
cash,
was paid out of the proceeds of the sale of livestock of an entity
ultimately owned by the Children’s Trust, which
resulted in an
enormous and increasing debt due by me to them. I do not earn a
salary, but am supported by my family. Although
I have no management
role, I contribute to the success of the farming enterprise, using my
some forty-five years of experience
to provide advice and assistance.
My two sons, Greg and Murray, have gradually taken over roles which I
previously played as I
have been increasingly unavailable due to the
demands of my court battle.
11.
My
experience in farming matters over many years has resulted in my
advice and intervention being sought relating to farming issues.
Not
only am I involve in the criminal case in Johannesburg, but I am also
involved in various ongoing civil matters in Pietermaritzburg
relating to the children’s farming enterprise for which my
participation is crucial. This takes up considerable time and
effort
on my part.
12.
I
also have no access to any assets abroad. Despite years of diligent
searching and trips to various overseas countries, the State
has been
unable to unearth a single cent of overseas funds to which I (or
Bernice) could possibly have access, whether directly
or indirectly.
This is because neither or Bernice, have any such funds or access to
such funds.
13.
Since
my arrest in December 2002, one of the farms owned by the Children’s
Trust, namely, Gildford, had to be sold in order
to fund my legal
costs. This was a key farm, the replacement cost of which would today
be at least ten times the price released
at the time. During the past
six or seven years, four farms in the same area have been purchased
by the children’s farming
enterprise, namely, the farms
Berridale, Bellevue, Fair View and Avenue Hill.
14.
As
stated hereinafter, there is also a long ongoing civil dispute with
SARS (who is the principal complainant and sponsor of the
costs of
the state in this case) to which Bennett and I are parties and which
has been taking up much of my time. The dispute relates
to several
unsuccessful attempts by SARS since early 1998 to prove a claim or an
interest either before the liquidators or the
courts in an insolvent
estate of which Bennett and I are directors, namely Lamax (Pty)
Limited (in liquidation) [“Lamax”].
A large
counterclaim was filed against SARS by Synergy in 2000 and, for the
past nearly 20 years, SARS has also prevented and delayed
a
distribution payment of several millions rand (currently some
R15million) to Synergy (previously Accused No.4) and thereafter
to
the Surrey Development Trust (“Surrey”) to whom Synergy
had ceded its claim over 14 years ago. (Bennett and I are
trustees of
Surrey, which was set up in 1993, and my children are the
beneficiaries.) This matter does not relate at all to the
criminal
charge against Bennett and I, but it does relate to the validity of
claims by SARS and the fraudulent nature of tax and
value added tax
assessments drawn up by SARS officials, including Boshoff who is a
member of the prosecution team. It therefore
goes to the heart of the
credibility of the prosecution and key members of the prosecution
team.
15.
Myhealth,which
has previously been robust, has now started deteriorating, I have
dealt with this issue more fully above.
16.
I
respectfully submit that in the nearly fifteen years since my first
arrest, I have never had any desire or intention to leave
my family
behind or to endeavour to escape the criminal trial. I have made no
attempt to flee from the Republic of South Africa,
nor do I desire or
intend to do so. At my age (66), and with no wealth, I would find it
impossible to obtain employment or live
anywhere else but South
Africa. I am totally dependent on my children for financial support.
I am besotted with my grandchildren
who similarly love their “pop”.
We spend as much time as possible together”
.
The Applicant has
adopted a wrong procedure. The approach adopted can best be described
as in the form ofdelphic style –“
heads you loose and
tails I win “– in the presentation of his case.
The
point in limine
[13]
I must first deal with the point in limine – the special plea.
[10]
. For the sake of
completeness I quote the defence again:
“
..the
bail application cannot be proceeded with as the applicant is
currently awaiting adjudication of his application for
special leave
to appeal.”
A
plea of
lis
pendes
is
a special plea. Thus it must be adjudicated first. The
pleasis aimed at the avoidance of duplication of actions.
I am of the
view that the point raised has merit. There is currently a
pendingaction between these parties in the Supreme Court.
That is
common cause and the action is pending at the instances of the
Applicant. The subject-matter in that case is the liberty
of the
Applicant. In the case before me the same parties are involved. The
subject matter is the liberty of the Applicant. The
fora
or forum
may have changed but the appeal on the same basis as stated above is
still pending nonetheless.
[14]
The Applicant was aware of the difficulties. Consequently, he devised
the so-called new facts approach in order to circumvent
the problems
of the stated special plea. The adopted approach is not a mistake.
This is consistent with the attitude adopted
by the Applicant in
numerous cases before our court. He commenced this application with
the full knowledge of the pending case
elsewhere and with the full
knowledge of the spirit of the directive of Judge Mokgoathleng
[11]
.
In my view, his conduct is
prima
facie
vexatious.
[15]
The Applicant is acutely aware of the rights contained in the
Constitution
[12]
. He is
not an infrequent visitor and has enforced them regularly in the high
court. The revocation of bail affected the fundamental
right of the
Applicant. His precious right of freedom is guaranteed by the
Constitution. I am enjoinedto adopt the approach
that
advancesand promotes the purport of the spirit, the object and the
values of the Constitution of the Republic of South Africa.
But that
statement must not be looked at in isolation. Thefairtrial
principlesappliesto both parties and in particular they
apply to
sustain the criminal justice of the Republic. They are not meant to
be abused. The new fact approach is but one of the
many stratagem he
uses.
[16]
The fact that the matter is pending elsewheremust have some seriou
legal implications and consequences. The principles of lis
pendes are
necessary for orderliness. Applicant’s attitudeis that the two
processes are different and distinguishable. He
has not explainedthe
differences. That argument is, in my view, fallacious and
legally untenable. The primary objectiveofthetwo
processes isaimed at
the regaining of the lost freedom.. The essence in this application
and in the application pending in the
Supreme Court issubstantially
the same. Theadmission to bail. Accordingly, it is a
disingenuousargumentthat the present applicationcontaindifferent
points than those raisedin the special leave application currently
pending in the Supreme Court of Appeals. That view stands to
be
dismissed.
[17]
The Applicant has the propensity of disregarding the injunctions. He
made a wrong choice notwithstanding the clear and unambiguous
directiveofJudge Mokgoathleng
[13]
.
He made a choice and must stick to it. This application is an
afterthought but on the whole demonstrate the stratagem generally
used by the Applicant to delay the trial. Bail is an undertaking to
attend trial because at this stage he is presumed to be innocent.
The trial needs to be finalised. It is often said “justice
delayed is justice denied”. Section 35 (3) (d) of
the
Constitution provides that:
“
Every
accused person has a right to a fair trial, which
includes
the right
(d)
to have their trial begin and conclude without
unnecessary
delay ;”.
However, where there
are unnecessary delays caused by non- attendances the court may be
justified to withdraw bail in order to facilitate
the attendance and
conclusion of the trial.
The
delay in this trial – The Zuma principles
[18]
The matter has been on the roll since 2006. It has received in
one way or another attention of the high court (Mailula,
Borchers,
Maluleke, Mokgoathleng JJ) the Supreme Court of Appeal . The
Supreme Court, has correctly,lamented the delays.
Poonan
JA that:
“…
.as
has been made plain in this court and in the court
and
the one below, they ( Applicant and his co-accused)
intend
to employ every stratagem available to them in order
to
delay the commencement , and thereafter continuation,
of
the trial for as long as they possibly can.”
[14]
The
above observation was made some seven years ago but it is still
effectivetoday as it was then. The delay in this matter is
totallyunacceptable. This case strangelyhas the hallmarks of the
Zuma
Principle
-
to drag the case througheven when there aremanifestly no prospects.
Theseparticular tactics have since become common place in
our courts.
The delay of some16years cannot on any platform be justified.
Approximately17 judges have in one way or
another dealt with
this matter not on trial but on peripheral issues.
[19]
The Applicant is using the old well-known tricks to cause a delay.
The Applicant is now representing himself. He has dismissed
the
attorneys from the case and hopefully they will never reappear in
this matter at any future convenient time. The Applicant
continues to manifest his negative and demeaning attitude towards the
bench and the prosecution. Such tactics reflect negatively
on our
justice system and particularly the criminal justice system. The
tactics deserve to be rooted out. I am in buttressed
by the
view of Poonan JA referred to above
[15]
.
The conduct of the Applicant in a negation of what any true lawyer
will ever call justice. His tactics are inherently unjust,
cruel and
primitive We cannot condone his conduct in terms of which he is
trampling the administration of justice in to dust. In
my view his
conduct is vexatious.
[20] I am satisfied
that the point in limine is well taken. The point is good in law.
Therefore there is no need to consider whether
Applicant has
discharged the onus upon him in terms of Section 60(11)(a) of the
CPA. I had a choice. I could have postponed the
application until the
appeal is finalised. In the interest of justice this is the matter
where it has to get a definite pronouncement.
Conclusion
[21] Accordingly,
the Respondent’s point in
limine
is good in
law. The application on the so-called new facts is an attempt to get
the order of Judge Spilg reviewed by me through
the back door. In the
circumstances I make the following order; namely:
The
application to be admitted to bail is refused.
_____________________
RE
MONAMA
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Appearances
Counsel
for the Applicant: Adv. W J Vermeulen SC
Instructing
Attorneys: FJ Cohen Attorneys
Bramley,
Johannesburg
Counsel
for the Respondent: Adv. E Coetzee SC
Adv.
J Ferreira and
Adv.
P Louw
Instructed
by: Director of Public
Prosecution
,Pretoria.
Date
of hearing: 13 December 2017
Date
of judgment: 2 March 2018.
[1]
Legal Aid Board v The State
2011(1)SACR 166 SCA
[2]
The Criminal Procedure Act, as
amended
.
[3]
Paragraphs 111-126 on pages
38-45 of the record
.
[4]
T
he Constitution of the Republic
of South Africa Act, 108 of 1996.
[5]
Weiner J when addressing
the Advanced Workshop in Wallengberg in Stellenbosch said
the
following: “ We expect attorneys and counsel to
comply withal applicable rules of
procedure,
local rules and practice manual.”
[6]
1979(3) SA 734 (W) and 1986(3)
SA 721(W) respectively.
[7]
Section
39(2) of the Constitution
[8]
See Pages 38 – 45
(Paragraphs 111-126) of the founding affidavit (volume 1 of the
record
[9]
See the head note in S v
Nkosi 1987(1) SA
581 TPD
at585
G-H where the court held
that
“ Die beskuldige word nie in sy vorige stand teruggeplaas.
‘n Herstel van borgtog is onder art 67 nie moontlik
nie. Dit
beteken egter nie dat ‘n nuwe aansoekom bortog op feite wat
heers ten tye van daardie nuwe aansoek nie aangehoor
kan word nie”
[10]
See paragraph 8 above.
[11]
See paragraph 5 supra
[12]
See Porritt and
another v National Director of Public Prosecution and others
2015(1)
SACR 533 and
Legal Aid SA case referred in note 1 above.
[13]
See paragraph 6 above
[14]
Legal Aid Board case at page
184E-G
[15]
See paragraph 17 above.