Bennett and Another v S; In Re: S v Porritt and Another (SS40/2006) [2020] ZAGPJHC 275; [2021] 1 All SA 165 (GJ); 2021 (1) SACR 195 (GJ); 2021 (2) SA 439 (GJ) (12 October 2020)

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[2020] ZAGPJHC 275
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Bennett and Another v S; In Re: S v Porritt and Another (SS40/2006) [2020] ZAGPJHC 275; [2021] 1 All SA 165 (GJ); 2021 (1) SACR 195 (GJ); 2021 (2) SA 439 (GJ) (12 October 2020)

Links to summary

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS 40/2006
In
the matter between:
BENNETT,
SUSAN HILARY
First
Applicant
PORRITT,
GARY PATRICK
Second
Applicant
and
THE
STATE
Respondent
In
re:
THE
STATE
And
PORRITT,
GARY PATRICK
Accused
no 1
BENNETT,
SUSAN HILARY
Accused
no 2
JUDGMENT-
RECUSAL APPLICATION
SPILG,
J:
BRIEF
HISTORY
1.
The matters before the court are applications for
my recusal brought firstly by Ms Bennett who is accused no 2,
followed later by
one brought by Mr Porritt who is accused no1.
2.
The applications were brought effectively at the
insistence of the court after Bennett had sought to bring an
application for a
special entry. Bennett’s application was
launched in mid-October 2019 and Porritt’s four months later at
the end of
February 2020. The background to the court being required
to consider recusing itself are dealt with in the section headed
“
Undue Delay”
.
3.
The accused presently face just over 3000 counts
involving white collar crimes.
The
offences range from common law fraud and tax related offences to
exchange control contraventions and from market manipulation
and
stock exchange listing contraventions to money laundering and
racketeering under the
Prevention of Organised Crime Act, 121 of 1998
The
offences are alleged to have been committed some twenty years ago.
However the indictment was only served on the accused in
July 2005
and the matter was first enrolled for trial in January 2006.
4.
The case was first dealt with by Borchers J who
in about September 2011 recused herself. Although the judge had dealt
with a number
of issues in relation to the production of documents
and legal aid assistance which had been granted, the accused had not
yet pleaded
to the charges.
5.
Mailula J
was then appointed to preside. The accused brought a number of
further applications before the judge including one for
the removal
of the two lead prosecutors on the grounds of bias. Mailula J granted
the application. The issue went on appeal and
the Supreme Court of
Appeal overturned the judgment on the ground that the accused had to
demonstrate actual bias in order to remove
a prosecutor from the
trial
[1]
.
The
decision of the SCA was handed down in October 2014.
6.
Mailula J then took ill and in July 2015 the
matter was allocated to me. By this stage the accused had still not
pleaded to the
indictment.
7.
It was therefore necessary to direct that the
accused identify all applications and constitutional challenges they
intended to take
pre-plea. They were informed of my
prima
facie
view that unless these were identified
within the reasonable time afforded they may be precluded from
raising them subsequently.
Numerous procedural failings by the State
and also constitutional challenges were raised.
8.
The court then prepared a litigation plan so that
the applications could be heard in a logical fashion- in order to
ensure that
each application did not run its course right up to
appeal before the next application was brought. Some of these
applications
concerned the production of additional documents,
including internal reports which both SARS and the State had refused
to provide.
Other
applications were for a declaration of a permanent stay, for the
recusal of the prosecution team on the grounds of actual
bias and the
centralisation of the case in Johannesburg since Porritt resided in
Pietermaritzburg and Bennett had moved to Knysna.
9.
All the constitutional challenges and other
applications were then brought and finalised between July 2015 and
July 2016.
In
the judgment of 28 July 2016 dealing with my dismissal on 7 July 2016
of the last of the pre-plea issues, the following was recorded
under
the heading “
Plea to the Charges”
in paras 67 to 69:
67. After I gave the
decision to dismissing the application and deciding to sit without
assessors the accused were informed that
the court would sit early in
the following term when the charges would be put to them. Due to the
anticipated week or more it would
take to read out the numerous
charges both accused indicated that they would prefer to expedite the
process. They confirmed that
they understood the charges and said
that they intended to plead not guilty to each while also raising the
lack of jurisdiction
plea under
s106
(1) (f).
1.
25cm; margin-bottom: 0cm; line-height: 150%">
68. The court
indicated that this should be done in writing. An adjournment was
taken to enable the accused to consider their position
and discuss
with the prosecution the manner of pleading to the charges without
the necessity of each being read out to them in
open court.
69. After resuming,
the accused presented a document signed by them and  confirming
that they understood the charges, that
the charges need not be put to
them in open court and that a plea of not guilty as well as a plea of
lack of jurisdiction under
s106(1)(f)
be entered. This was duly done
and the matter was remanded to 19 August 2016 when the plea of lack
of jurisdiction will be dealt
with. The accused who are out on bail
were duly warned.
10.
In the result, after the matter had been brought
to trial in January 2006 before Borchers J, then had proceeded before
Mailula J
and after all pre-plea issues had been finalised and the
accused had pleaded on 7 July 2016, subject to the outcome of the
special
plea of want of jurisdiction, the first State witness was to
be called in August 2016.
11.
There are three factors which are relevant to
many of the grounds raised for this court’s recusal. They can
be conveniently
dealt with now as they add a perspective to the way
in which the arguments raised by the accused are to be considered.
12.
This court was seized with the matter in July
2015. Between then and when the accused pleaded to the charges in
July 2016 I had
delivered some
five lengthy
judgments and numerous
ex tempore
judgments and rulings.
13.
A not insignificant detail is the number of
orders either made in favour of the accused or where I left the door
open for a later
re-consideration.
14.
It is also of relevance, in relation to the
allegation of an apprehension of bias in favour of SARS, that among
the pre-plea orders
was one issued pursuant to an application brought
by the accused where I
ordered a rule nisi
against SARS with certain other orders relating to the production of
documents and recordings that I was satisfied
were in the possession
of either the prosecution team or SARS. The order was made on 23
October 2015. I held that the prosecution
and SARS were obliged to
make the documents available for what is colloquially termed a
judicial peek.
15.
Once I had considered the documents I ordered
that the accused could have all extracts which were relevant to them.
The documents
in question related to issues concerning an alleged
“
rogue unit”
and
its possible connection to the pursuit of Porritt.
16.
Two of the most important pre-plea applications
concerned one for a permanent stay of prosecution and the other for
the removal
of the prosecution team on grounds of actual bias (as
this aspect had not been considered in the earlier appeal to the
SCA). The
applications consisted of over 3200 pages. The documents
the parties considered relevant comprised over 15 000 pages
contained
in 27 lever arch files. Multiple sets of heads of argument
had been filed. They alone numbered over 300 pages excluding the
authorities
provided.
17.
The court heard argument over a period of 13 days
and delivered judgment on 22 April 2016. I dismissed both
applications but pointed
out that this was because the facts then
before me at that pre-plea stage were insufficient to support the
applications and that
my order did not preclude the issues being
raised later. The following extracts from that judgment suffice to
demonstrate the point
the court wishes to make:
15. The first
difficulty facing the accused is that
they
have raised trial prejudice prior to pleading to the charge and prior
to any evidence being led. They are therefore postulating
situations
where prejudice may arise not that it has actually irreversibly done
so at this stage. The built in safeguard to criminal
trials is the
heavy onus imposed on the state
to
prove its case beyond a reasonable doubt. This is the counterweight
to difficulties that the criminal justice system recognises
an
accused may have in obtaining rebutting evidence.
16. The safety net
within the system of criminal justice and procedure was considered in
detail by Sachs J in Bothma v Els and others
2010 (1) SACR 184
(CC)
at paras  81-82 …
68. I am satisfied
that
at this stage
the accused have not demonstrated on a
balance of probabilities that there is prosecutorial bias.
69. It must always be
recognised that the court exercises overall control to secure a fair
trial.
If issues arise during the trial which reveal facts that
would result in prosecutorial bias then that can be weighed up in due
course
and appropriate remedies provided, including the removal of
the prosecutors, or if it or other factors are shown to result in the

failure of a fair trial then these may entitle the accused to a
permanent stay or an acquittal for some or all of the charges.
70.
It must
therefore be made clear
, as I have attempted to indicate (and
which I add to this typed judgment pursuant to a query from Mr
Porritt which was raised and
responded to in open court
) that the
door is still open at the trial for the accused to demonstrate
grounds to support the various relief they have sought
in the
application before me or to support an acquittal as indicated in the
previous paragraph
.
This judgment does not bind the hands of
the trial judge and should not be interpreted to do so when vive voce
evidence is presented
or events occur before the court during the
trial
.
(emphasis
added)
18.
The further significance of the last two extracts
is that at that stage the accused had not yet pleaded. I was unaware
of who would
be allocated to hear the trial itself. I therefore
sought to make it clear that my decisions would not debar any judge
seized with
the matter, least of all suggest to the prosecution if I
was to continue with the matter, that both issues could not be
revisited.
I
will return to this judgment when considering the question of bias in
relation to SARS. At this stage it may be appropriate to
indicate
that one of the concerns is that both senior counsel and for that
matter the accused’s entire legal team in considering
their
arguments and in drafting the papers did not appear to have read or
properly consider all the judgments this court had already
delivered
in this matter.
19.
Bennett’s application for my recusal is
just over 1270 pages in length. The founding affidavit alone is 231
pages. Her supplementary
affidavit is another 230 pages odd. Despite
piggybacking on Bennett’s application, Porritt’s
application is an additional
369 pages covering in part certain
additional aspects. The State’s answering affidavit is itself
211 pages while supporting
affidavits and documents add another 830
odd pages to the record. The sum total of the papers filed in the
recusal application
is just over 3000.
20.
The view I take of this matter is that the delay
of well over three years in bringing the recusal application since
the accused
contend I demonstrated actual bias in August 2016 (and
over two years since an application in August 2017 which sought a
postponement
to launch such an application)  will be a ground
for its refusal provided that no new incident is alleged to have
arisen which
independently supports the application, or together with
the prior history of incidents during the course of the case, can be
said
to be the proverbial straw that has broken the camel’s
back.
21.
Since the accused had signed a notice of motion
foreshadowing a substantive application for my recusal (now over
three years ago)
on 1 August 2017, and as far back as then claimed to
require two months to complete their founding affidavit, it is
evident that
if there was a final straw it had already settled on the
proverbial back as far as the accused were concerned.
Accordingly
the only issues raised which could therefore be taken into account to
warrant a recusal after three years of evidence
had been led, is the
SARS list (which itself was first raised as far back as May 2018)
and, post the launch of their recusal application,
the court’s
knowledge of the contents of Porritt’s affidavits in his most
recent bail application. These therefore
require more detailed
consideration.
22.
It should
be added that many of the arguments raised by counsel for each of the
parties are peripheral or have been considered by
another court and
therefore need not be addressed
[2]
.
The focus is on the legal merits of the application itself having
regard to my overall view that the accused bided their time
in
bringing the recusal application resulting in undue delay, thereby
making it unnecessary to deal with most of the earlier alleged

incidents.
[3]
23.
Due to the voluminous papers filed  I will
proceed to deal with the application in the following sequence:
a.
The test for recusal
b.
Whether there was undue delay in bringing the
application
c.
The SARS list
d.
The purpose of calling for Porritt’s bail
application and its possible effect
e.
The other grounds for recusal including the
refusal of the postponement in August 2016
Due
to the lack of discernment with which recusal applications are being
launched and the risk that they are being used as a stratagem
outside
their genuine and essential purpose it appears necessary to say
something about the responsibilities or duties (if any)
of a litigant
or their legal representatives before they proceed with such an
application. It may also be necessary to consider
whether a stage has
been reached to impose sanctions in cases where the right to request
a recusal has been abused for an ulterior
purpose or objective.
TEST
FOR RECUSAL
24.
The test for recusal is now well established.
Both the Constitutional Court and the SCA have honed the legal
requirements down to
include at least a double reasonableness test
based on a consideration of the correct facts.
It
was put as follows in
The President of the
Republic of South Africa and others v the South African Rugby
Football Union and others
[1999] ZACC 9
;
1999 (4) SA 147
CC;
1999 (10) BCLR 1059
(CC)  (the “
SARFU”
case) at para 48:
“
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and the
submissions of counsel”
Since
the present case turns in part on what are the true facts and
Adv
Antonie’s
express acknowledgement of what they are, the following extract from
SARFU
(at para 45) should also be mentioned:
“
The
apprehension of the reasonable person must be assessed in the light
of the true facts as they emerge at the hearing of the application.

It follows that incorrect facts which were taken into account by an
applicant must be ignored in applying the test”
25.
The double reasonableness test was explained by
Cameron J in
South African Commercial Catering
and Allied Workers Union and Others v Irvin & Johnson Ltd
(Seafoods Division Fish Processing)
[2000] ZACC 10
;
2000 (3) SA 705
CC
[2000] ZACC 10
; ;
2000 (8) BCLR 886
, at para
15:
““
Not only
must the person apprehending bias be a reasonable person, but the
apprehension itself must in the circumstances be reasonable.
This
two-fold aspect finds reflection also in S v Roberts, decided shortly
after SARFU, where the Supreme Court of Appeal required
both that the
apprehension must be that of a reasonable person in the position of
the litigant and that it be based on reasonable
grounds.”
At
para 13 the court expanded on
SARFU
and said
“…
two
considerations are built into the test itself. The first is that, in
considering the application for recusal, the court as a
starting
point presumes that judicial officers are impartial in adjudicating
disputes. As later emerges from the SARFU judgment,
this in-built
aspect entails two further consequences. On the one hand, it is the
applicant for recusal who bears the onus of rebutting
the presumption
of judicial impartiality. On the other, the presumption is not easily
dislodged. It requires ‘cogent’
or ‘convincing’
evidence to be rebutted.  The second in-built aspect of the test
is that ‘absolute neutrality’
is something of a chimera
in the judicial context. This is because Judges are human. They are
unavoidably the product of their
own life experiences and the
perspective thus derived inevitably and distinctively informs each
Judge’s performance of his
or her judicial duties. But
colourless neutrality stands in contrast to judicial impartiality. –
a distinction the SARFU
decision itself vividly illustrates.”
See
also
S v
Schackell
2001
(2) SACR 185
(SCA) at paras 19 to 22.
[4]
26.
As appears from the earlier extract from
SARFU
,
an apprehension of bias can only arise if it is founded “
on
the correct facts”.
In
other words, if the factual foundation is wanting then
a
fortiori
the apprehension is misplaced and
that will end the enquiry.
27.
Finally, it
is acknowledged that a judge is not just a “
silent
umpire”
[5]
and
that, while maintaining fairness and impartiality, a judge is
responsible for managing a trial to finality both efficiently
and
effectively.
Harms
JA (at the time) in
Take & Save Trading CC
and others v Standard Bank of SA Ltd
2004 (4)
SA 1
(SCA) at para 3 said that a judge;
“…
is not
simply a ‘silent umpire’. … Fairness of court
proceedings requires the trier to be actively involved in
the
management of the trial, to control proceedings, to ensure that
public and private resources are not wasted …”
[6]
This
passage was adopted by the Constitutional Court in
S
v Basson
2007 (1) SACR 566
CC at para 33
28.
Finally the
test is objective and the party alleging bias or an apprehension of
bias bears the onus of proving it.
[7]
UNDUE
DELAY
First
alleged display of bias
29.
The accused contend that I had already displayed
bias when the court refused to grant a postponement of the trial in
August 2016.
They do not suggest that my refusal was simply a cause
for concern. Rather that already at that stage I had displayed bias
warranting
my recusal.
30.
I mentioned earlier that at this stage I had
already dealt with five or so substantive pre-plea applications and
made a number of
interlocutory orders (including the grant of a
postponement) at the request of the accused.
31.
By that stage too, I had already been involved in
the matter for just over a year. The total number of actual court
days taken up
in dealing with these applications, one of which was
detailed earlier, is more than the entire duration of most criminal
cases
let alone civil court trials.
Not
the first application by the accused raising recusal
32.
The present applications, which was only formally
launched by Bennett in October 2019 and Porritt in February 2020,
were not the
first to be brought by them raising an intention to seek
this court’s recusal.
More
than two years earlier, on 1 August 2017, both accused presented the
court with a notice of motion in which they claimed they
would be
bringing such an application. There was however no supporting
founding affidavit.
33.
The immediate question was why they would bring
such an application since they had, at the least, the month long
mid-year recess
to bring a substantive recusal application.
34.
The answer they gave was that they required the
transcripts of all the hearings before they could draft the
affidavits, that they
required a number of
ex
tempore
orders and rulings and that since
Porritt’s bail was revoked they did not have facilities
available to consult with each
other since Bennett was only allowed
to visit Porritt once per week.
35.
The accused sought the following order::
1.
“
Postponing the trial “until such
date as the court determines
in order
to allow the accused time to bring an application for the recusal of
the sitting judge
… which period
will allow;
a.
The provision to the accused of the
outstanding written judgement still awaited from the court.
b.
The provision to the accused of the record
of outstanding proceedings that have not yet been provided to the
accused
(emphasis added)
2.
Mr
Porritt be permitted to consult privately on the content of the
recusal application with Ms Bennett for a reasonable period of
time
at the High Court cells or any other facility on 01 August and such
other dates as the court permits prior to launching the
recusal
application and that the relevant authorities be ordered to transport
Porritt to and from the Johannesburg Central Prison
and the High
Court to facilitate these consultations
36.
The court refused the application on the ground
that the issue came down to a question of what prejudice could arise
if the trial
continued while in the interim the accused could bring
their application. Bearing in mind that Porritt was now in custody
the only
prejudice to the accused was their alleged inability to
complete their affidavits for the recusal application which they said
would
require two months to finalise.
37.
I then reorganised the dates of the court’s
sitting to accommodate the accused so that the two month period they
required
to complete the recusal application could be accommodated
sooner without prejudicing the ongoing trial.
The
accused stated that they would not be using counsel and would
complete the affidavits on their own- hence the need to release
some
of the allocated trial dates so that they could prepare the
affidavits.
38.
I therefor recalled my order in so far as the
trial dates of 26 September to 6 October were concerned and
specifically directed
that those dates were to be used by the accused
for purposes of preparing their application. To the extent that they
required consulting
facilities, bearing in mind that Porritt was now
a trial detainee, at the hearing on 1 August I also informed the
accused that
the court would have no difficulty in making
arrangements for them to do so in the court cells.
39.
The accused did not avail themselves of the time
accorded to file their affidavits. They did not use the time
available during the
long mid-year recess of 2018, the short
September recess, the long December recess of that year, the mid-year
recess of 2019 let
alone the short court vacations of April and
September of 2019 or the various occasions that the trial did not run
during the 2018
and 2019 court terms.  No acceptable explanation
has been offered.
40.
Despite claiming that they needed two months to
file their affidavits, and leaving aside periods effectively afforded
to the accused
during term when the trial did not run, the accused
had in total five months worth of court recesses to prepare the
founding affidavit-
reckoned from the commencement of the court
vacation in December 2017.
Not
applying for recusal in May 2018
41.
By May 2018 a period of 10 months had passed
since the accused brought their application to postpone the trial
pending a recusal
application.
42.
On 4 May Bennett produced the SARS list. The
exchanges on which she now relies for contending that I should recuse
myself took place
on that date and on 8 May.
43.
The accused claim that the SARS list and the
exchanges justified a conclusion of bias or an apprehension of bias.
Despite this and
despite the time already afforded them, including
not sitting for a period of two weeks in September 2018 to enable
them
to prepare their founding affidavits for my recusal, no
such application was brought then, or for well over a year after
that.
Court
initiating recusal
44.
Bennett’s recusal application would not
have seen the light of day had the court not insisted that the issues
raised in an
application for a  special entry under
s 317
of the
CPA  brought by her on 18 September 2019 required me to consider
mero motu
whether I
should recuse myself.
45.
The
application under
s 317
contended that it was a material irregularity
for the court not to have disclosed or explained to the accused the
circumstances
under which my name appeared on a 2002 list of income
tax defaulters issued by SARS. It was also contended that I had
failed to
further explain and account for if, how or when, such
indebtedness to SARS, reflected in the document at R3.66 million, was
resolved,
and where such failure to disclose “
inevitably
raised questions as to the impartiality “
of the judge. It was further contended in the
s 317
application that
I must have been aware of the claim by SARS on or around July 2002
for unpaid income tax and should have been
prepared to discuss the
circumstances surrounding it
[8]
.
Bennett alleged that it was an irregularity not to recuse myself and
not to have accepted the position of presiding where SARS
is itself
the principal complainant, driver and sponsor of the trial without
making the disclosure.
46.
The answer in short is that I was unaware of the
list, had never been approached by SARS in respect of any such
indebtedness, had
never received an assessment for such an amount
(which would be a
sine qua non
for the raising of a liability) and that a copy of my running
statement from SARS, which the accused were given the following day,

clearly reflected that no such assessment had been raised in 2002.
47.
Bennett handed up the application, I glanced at
it and the following exchange took place:
Court:
But it does impact on recusal does it not”
Bennett:
Yes, actually my Lord, yes
…
Court:
(in response to Adv Coetzee saying that it is a
section 317
application):
But if I do not recuse
myself now, or consider recusal in light of this surely I am simply
perpetuating a failure on my part…
It
was therefore evident that I intended to consider my recusal in
relation to the SARS list.
48.
On the following day
Adv
Du Toit
in the
company of his attorney, Mr Cohen attended court, advised that they
represented Porritt and  wished to consider joining
in the
application  “
whether this is a
pure 317 or a recusal encapsulated in it”
.
49.
I gave the parties sight of my running tax
account with SARS up to the February 2002 tax year end. I entrusted
Adv du Toit with
a copy to keep, as he then wished to consider his
client’s position and I believed he would need it in order to
consult and
explain its import.
Bennett
had already indicated on the previous day that she had sent a
transcript of that very day’s proceedings to
Noseweek
magazine. I was therefore concerned that my private tax statement
would similarly enter the public domain. I therefore embargoed
its
public dissemination as one does in intellectual property and tax
matters. I considered it adequate that Adv du Toit retained
one copy
in his safekeeping and that Bennett could not be prejudiced by that.
50.
I remained satisfied that a serious allegation of
the nature contained in the
s 317
required me to consider my recusal
mero motu.
51.
It was only
after these exchanges that Bennett wished to consider her position.
She subsequently elected to withdraw the
s 317
application (or so I
had understood) and brought the present application a month later.
[9]
52.
In
S v Herbst
1980 (3) SA 1026
(E) the court in dealing with delay did not see it
in the form of acquiescence  but rather that;
“
Although it is
obviously desirable that an application for recusal should be brought
as soon as possible after the applicant becomes
aware of the cause
for complaint, I do not think that the applicant's delay in bringing
his application in the present case precluded
him from bringing it at
all”
53.
Bernert
v ABSA Bank Ltd
2011 (3) SA 92
(CC) at para 74 confirms that the issue cannot be
considered within the framework of acquiescence. A party cannot
acquiesce on
a matter as serious as bias and the obligation of a
judge to recuse himself or herself in the interests of justice
particularly
having regard to an accused’s constitutional right
to a fair trial.
[10]
54.
The accused however argue that being a continuing
wrong there cannot be a time bar. I also do not consider this to be a
correct
characterisation of the issues which arise from delay.
The
issue comes down to two fundamental considerations. The one is
whether the failure to bring an application within a reasonable
time
constitutes evidence that the accused themselves did not consider
there to be a risk of bias, perceived or real. The other
is the
interests of justice.
55.
In the present case both considerations are
relevant. The accused had said they were intending to bring a recusal
application as
far back as 1 August 2017. At that stage they claimed
they only needed two more months to do it in. That was when the first
state
witness, Mr Milne, was still being led in chief.
56.
They did not bring the application within the two
month period and the accused have failed to give any satisfactory
explanation
as to why they did not proceed with that application but
only decided to consider their position again for the first time in
September
2019- and then only when the court effectively pre-empted
the situation through its concern that it had to consider recusing
itself
in light of the SARS issue raised in the
s 317
application.
57.
The accused’s conduct is not that of a
person who is concerned about the possibility of bias on the part of
the presiding
judge. Moreover, the very reason for the need to stay
the continuation of the trial at the commencement of the third term
in 2017
and for such a long period (despite the dates having been
confirmed prior to the court recess) was that they would not be
engaging
counsel. This was in response to a direct question. However
both parties have as a fact engaged counsel for these
applications.
58.
In regard to the interests of justice; the trial
is now into its fourth year post-plea. Two material witnesses have
completed their
testimony, one an alleged co-conspirator and the
other an expert forensic accountant who was called
inter
alia
to analyse transactions and their
alleged import having regard to the transactions as recorded in the
books and documents of companies
in which Porritt was a director or
had an alleged interest. Bennett has almost completed her
cross-examination of another forensic
accounting expert.
59.
The events
in respect of which Milne testified occurred some 20 years ago.
Milne’s evidence commenced in September 2016
and was finally
concluded on 27 November 2019.
[11]
In
between it was necessary to invoke
s 166(3)
of the CPA to ensure that
Porritt did not further delay his cross-examination of Milne
[12]
.
So
too in the case of Bennett’s cross-examination of Milne.
[13]
Milne
attended court on approximately 140 days, over half of which he was
subject to cross-examination. Milne’s cross examination
had
commenced in February 2018.
60.
Albeit that the facts are not on all fours, the
underlying considerations expressed in
Bernert
at paras 70 and 71 are applicable to the
conduct of the accused in not pursuing a recusal application when
they said they were going
to- which itself occurred when they were
seeking to delay the trial from proceeding until such time as they
launched a recusal
application and had it finally determined; in
other words until all appeal processes were exhausted if the decision
went against
them.
The
following was said in
Bernert:
“
[70] The
applicant had about 39 days from the date of becoming aware of the
shareholding to the date of delivery of the judgment.
He could have
asked for time to consider his position. He could have asked Cachalia
JA to recuse himself and, if his application
had merit, he could have
had the proceedings started afresh before another panel. Instead he
did nothing...
[71] …. It is
highly desirable, if extra costs, delay and inconvenience are to be
avoided, that complaints of this nature
be raised at the earliest
possible stage.  … The conduct of the applicant is simply
inconsistent with a reasonable
apprehension of bias. ….
“
61.
The delay in bringing the application until well
after two important witnesses had completed their testimony and
another is almost
finished being cross-examined by one of the
accused, despite the first witness commencing his testimony over four
years ago, raises
those very issues regarding the interests of
justice which weighed with the court in
Bernert
.
At para 74 the court said:
“
In my view,
whether a litigant should be allowed to raise the issue of recusal at
a later stage, despite an earlier opportunity
to do so, implicates
the interests of justice and not waiver. …  In addition,
the interests of justice demand that
the interests of other litigants
be considered.
62.
It will be recalled that the first written
application alluding to the launch of a recusal application was while
Milne was still
being led in chief. A lot of water has passed under
the bridge since then.
As
outlined at the beginning of this judgment, this case has had a long
and chequered history
[14]
.
The
same path is likely to be followed if the case was to start again;
with another four years to reach this very stage. There needs
to be
finality. None of the parties are any younger. State witnesses will
have to start afresh, their cross-examination is likely
to take
longer as their evidence will be tested against their previous
testimony and court resources will need to be found for
another judge
to be engaged in a matter that will run for at least the same length
of time. State resources similarly will have
to be engaged again; at
present three counsel are regularly in court representing the State
because of the perceived complexities
of the case. Expert witnesses
who no doubt come at a significant daily cost will have to prepare
again and testify. The documents
placed in evidence to date, the
admissibility of which has generally been challenged, run to well
over 10 000 pages already.
63.
I do not believe that a litigant can be permitted
to bide his or her time until well into the case before choosing the
moment to
actually bring a recusal application.
Because
of the length of time already taken in hearing witnesses and the
other factors I have mentioned, the court is satisfied
that the
interests of justice require that the trial proceeds to finality
unless of course there is some more recent event which,
standing on
its own, raises an apprehension of bias or demonstrates actual bias
64.
The accused rely on only two incidents which
might be regarded as new. The one is the SARS list. The other is my
decision to call
for the founding and replying affidavits in
Porritt’s bail application. The court did so in order to
determine how much time
Porritt and his lawyers really needed to
finalise the replying affidavit in the recusal application if regard
was had to the length
of time it took from start to finish to launch
a fresh bail application during lockdown while Porritt was in
custody. It is also
necessary to bear in mind that the delivery of
Porritt’s recusal application had already dragged on for well
over four months
since the date it should have been filed.
I
proceed to deal with these grounds.
THE
SARS LIST
65.
.Bennett had obtained a list from the erstwhile
auditors of companies in which she and Porritt had been directors.
Bennett said
that the list contained the names of tax defaulters at
2002. The purpose of acquiring the list was said to be because the
name
of a person with whom Porritt was in dispute at the time was on
it. The list was said to have emanated internally from SARS
66.
The court was taken by surprise when Bennett
first raised it in May 2018. She said that my name had been mentioned
in a
Noseweek
article
and that the tax debt related to 2002. I responded that it was
clearly wrong, In view of the way she had approached it
I immediately
considered it appropriate that a SARS’ official be called to
give an explanation.
67.
Later that day I bought the magazine. My name was
not mentioned in the body of the article. My name however appeared in
a cut-out
from a list, which is said to be of tax defaulters. It did
not verify the source. There are three cut-outs in all; the first
reflects
some 50 names, one of them being mine. The second reproduces
a section of the first cut-out which results in my name appearing in

two of the three cut-outs.
68.
Since the source of the document was not
identified I considered that I had overreacted and when I returned to
court and said that
I had made certain assumptions in light of the
way Bennett had put it but, having since  read the article,
there was no need
for SARS officials or legal representatives to come
to court.
69.
I believed that this was the end of the matter;
that is until Bennett brought the
s
317
application in September 2019. I then obtained a print out from
my accountant of my running account with SARS. As mentioned earlier,

on the next court date Adv Du Toit and attorney Cohen were also in
court as they wished to consider joining in the
s 317
application. I
gave Adv du Toit a copy as well. They were all given an opportunity
to consider it. It reflected that by the February
2002 year end my
tax affairs were in order and no such amount had been raised.
70.
Bennett initially thought that the running total
itself was to be added. It was however evident that it was a running
total, and
this is accepted by the parties to be clearly so. Bennett
never suggested that the list was .in respect of any period other
than
2002.
71.
As stated earlier I entrusted a copy of my
SARS account to Adv du Toit to enable him to consider it and their
position with his
attorney in consultation with Bennett and their
client and do such further analysis as they wished.
72.
Bennett also asked for all the other pages
of the statement, which went up to the current time. I declined. She
had made it clear
that the list was in respect of 2002 tax
defaulters. The accused were given the running account up to the end
of that tax year.
Moreover an assessment could only have been raised
for that tax year. No person can be a tax defaulter unless there had
already
been an assessment. I considered the request a fishing
expedition.
73.
I believe that the court did what was required to
allay any concerns by providing the running statement of account from
SARS for
the tax period in question.
74.
Adv Antonie expressly acknowledged that I was not
a tax defaulter and shifted tack to say it was how I had dealt with
it which provides
the basis for the recusal. He referred to my first
calling on a SARS official to come to court then stating that it was
unnecessary,
by not giving Bennett the balance of my SARS running
account and then by placing an embargo on my personal tax information
which,
so he contended,  had precluded them from being able to
take instructions.
75.
Earlier I
dealt with the requirement that the apprehension of bias or actual
bias must be based on the correct facts. Moreover there
was no
restriction on the parties themselves being able to deal with my SARS
tax statement. The embargo was on public dissemination
[15]
.
As stated earlier Adv du Toit certainly did not understand it
otherwise since he was given the document to retain and consider.
76.
I have already mentioned that Adv Antoine
conceded the correct facts. Nor could he suggest otherwise: The tax
defaulters list could
only be, at best, in respect of the February
2002 tax year end. However in reality, since tax returns for the 2002
tax year would
not have been due by the time the list, if genuine,
had been prepared, it could only have related to individual taxpayers
who had
been assessed for the 2001 tax year at the latest. Secondly
the State produced affidavits by more than one SARS official
confirming
that I was not a tax defaulter and that my tax affairs
were in order.
77.
Even if the onus was on the State the correct
facts are that I was not a tax defaulter. That being the case there
can be no apprehension
of bias on the correct facts as accepted by
the accused.
78.
The suggestion that I now would disregard the
other contents of the list is incorrect. Mr Ramsay is a State witness
who I understand
the State intends to call. According to Bennett he
is the source of her obtaining a copy. No doubt Ramsay will be
cross-examined
on the list.
Ramsay
was also the auditor of the person who the accused alleged brought
about the downfall of the Tigon Group and whose name appears
on the
list. If anyone, he would have been familiar with the tax affairs of
his client and presumably the client’s engagement
with SARS. It
would be most surprising if the accused did not put flesh to the
bone, as they had successfully argued before me
when I gave them
access to the then confidential KPMG Report.
[16]
79.
This arose in one of the pre-plea applications
where the accused sought production of the KPMG Report which
concerned the activities
of an alleged unit within SARS. Porritt
alleged that this unit had been unlawfully used to bring the Tigon
Group down at that person’s
behest because Porritt had sued him
for a considerable sum arising effectively from the acquisition by
Tigon of that taxpayer’s
interests in a business transaction
which turned sour.
80.
I will commence with the order the court made
during October 2015 which
inter alia
directed that:
1. In terms of
section
342A
(3) of the
Criminal Procedure Act 51 of 1977
the Commissioner;
South African Revenue Service (‘SARS’) is to show cause
to this court on 2 November 2015 at 10h00
and sitting at Randburg
Magistrates’ Court why each accused should not be provided
forthwith with copies of the following
documents which are in its
possession or control or that of SARS’ agents;
a.
the KPMG Report inclusive of annexures  which had been
commissioned by SARS Commissioner Moyane and which was referred to
by
him on 25 August 2015 when appearing before the Parliamentary
Standing  Committee on Finance;
b.
annexures SR7 and SR12 to the Sikhakhane Investigation Report of 5
November 2014 into the conduct of Mr van Loggerenberg;
c.
the charge sheet against Messrs Ivan Pillay and Johannes Hendrikus
van Loggerenberg in the intended SARS disciplinary hearing
against
them;
2. The State shall
deliver to each accused a copy of;
a.
Van Loggerenberg’s affidavit in the trial of State v Selebi.
It
is recorded that the document was provided to each accused on 21
October 2015
b.
the affidavits of Stemmet and Burger given at the said criminal trial
of Selebi…
5. The documents
produced to the accused in terms of paras 1(a), (b) and(c) and 2(a)
may not be published and may only be utilised
by Mr Porritt and Ms
Bennett in  the present case or in court proceedings in which
they may be involved and provided they
are relevant in such
proceedings. This is without prejudice to the rights any person to
apply to this court that such document
or part thereof that might be
used in the court proceedings be published.
86.
The prosecution still objected to its production. At the following
hearing the court directed that it would have a judicial
peak at the
KPMG report and a 2001 SARS Internal Audit Manual to determine if any
parts were admissible irrespective of the grounds
of objection. I
then identified relevant portions and at the hearing of 4 November
2017 an order was made pursuant to SARS conceding
that these extracts
could be produced to the accused and the accused accepting that their
contents would be embargoed.
[17]
87.
The contents of the KPMG Report were used in the subsequent
application for the removal of the prosecutorial team.  Judgment

in respect of that application was delivered on 22 April 2016. In the
judgment I said:
“
59. The accused
have however brought into the equation two reports which at face
value indicate that the pursuit of Porritt by SARS
was instigated by
a person I will refer to as Mr X who allegedly had called up favours
from the then Police Commissioner Selebi
to deal with Porritt who had
himself approached SARS regarding an alleged VAT fraud perpetrated by
X on the companies Porritt had
effectively acquired from him. The
reports are known as the KPMG Report and the Sikhakhane Report.
60. The State objected
to the introduction of the reports as being hearsay. There are
exceptions to the hearsay rule which ultimately
come down to the
reliability or probative value of the evidence, why the persons
concerned cannot themselves give evidence and
the intended purpose of
the evidence provided that it is in the interests of justice to
receive such evidence  .
61 The events concern
the embryonic stages of the SARS covert operations under a Mr van
Loggerenberg. It is hardly likely that any
of the dramatis personae
will depose to an affidavit at this stage.  van Loggerenberg had
made an affidavit, although not
in this case,  and there is
enough in it for this court to accept that some time prior to the
arrest of Porritt, but after
he had informed SARS of Mr X’s
alleged fraud on it and after effectively suing X for some R250
million  (arising from
the acquisition of shares and assets of
X’s companies which Porritt sought to cancel by reason of
alleged frauds), X caused
then Police Commissioner Selebi to arrange
a meeting for him with Ivan Pillay, then of SARS, and van
Loggerenberg. The meeting
took place at X’s home one evening
and it is evident that Porritt was discussed.
62. The manner in
which SARS proceeded against Porritt and his companies some time
later, at face value, appears heavy handed and
draconian. Effectively
days after a revised assessment was issued the pay now argue later
principle was invoked, and the appointment
of the bank as SARS’
agent for collection. This resulted in the effective removal and
freezing of company funds which led
almost immediately to placing in
judicial management the cash cow companies in Porritt’s stable
and then almost as quickly
the  judicial management was replaced
with a winding up. The winding up resulted in what Porritt claims
were valuable businesses
being sold at no actual cost to an associate
of X. That is the picture the accused present. For present purposes I
will assume
all that.”
81.
I believe anyone reading these passages
objectively could not come to the conclusion that I was beholden to
SARS or would not bring
an impartial mind to bear on the case and in
particular those charges which related to alleged contraventions of
the Income Tax
Act and laws.
PORRITT”S
AFFIDAVITS IN THE URGENT SEPTEMBER BAIL APPLICATION
Background
82.
I should have commenced by pointing out that
no-one has suggested that the court in managing the case could not
take steps to ensure
that the recusal application did not drag on or
that, in order to properly inform itself, it should assess how much
time was actually
required by Porritt to file his long outstanding
replying affidavit (when the court became aware that he had in the
meanwhile brought
a fresh bail application as a matter of urgency).
I
set out in some detail the circumstances leading up to the court
making the orders and giving directions (which included having
sight
of Porritt’s own court papers) to ensure that the process,
which had now stalled, continued to be managed by the court
in a fair
manner but not at a pace left to the election of a litigant or the
lawyers.
83.
On 16 October and again on 27 November 2019 I
issued procedural directions with regard to the recusal application.
Under these directives
Porritt was also placed on terms to bring his
own recusal application should he intend to do so.
84.
At the time
I had also ordered that the main trial would not be stayed pending
the outcome of the recusal application. This allowed
certain
witnesses to complete their testimony and for Bennett’s
cross-examination of Ms MacPhail, another expert witness,
to be
almost finalised.
[18]
85.
Due to a failure to comply with the directives
and the advent of the Covid-19 hard lockdown on 26 March 2020 it was
necessary to
amend the terms of these directions. This was done by
way of an order issued on 8 April.
For
present purposes it is only necessary to refer to parts of the order.
Before doing so the following observations should be made.
Firstly
the order directed that the outstanding replying affidavits of the
applicants were to be filed no later than 10 court days
after the
lockdown had ended
Secondly
the order provided for heads of argument to be filed no later than 15
court days after the lockdown had ended and that
if either a replying
affidavit or heads of argument had not been filed in terms of that
order then the applicant in question would
be obliged at the hearing
date to show cause why the recusal application should not be
dismissed.
86.
The order of 27 November envisaged that Porritt
would file his affidavit by no later than 28 February 2020, that the
State would
file its answer fifteen days after that and that ten days
later the replying affidavits would be filed. Heads of argument were
to be filed by 8 April, leaving effectively a period of three days to
deliver the heads of argument after the replying affidavits
were
filed. It would also equate to the heads being prepared thirteen days
after the State’s answering affidavits were filed.
At
that time the recusal application was to be heard on 14 April
following on from the Easter weekend.
87.
In terms of para 3 all the orders were subject to
amendment should Porritt be able to consult with his attorneys
whether face to
face, telephonically or by video or other audio
device prior to the lockdown ending.
88.
In the meanwhile MacPhail’s testimony had
also ground to a halt at a stage where Bennett claimed that she had
only a few more
questions to ask the expert witness after which
Porritt would proceed to cross-examine and the prosecution would
re-examine. I
was under the impression that Bennett’s testimony
would be completed in well under a day. Bennett then requested time
which
she was accorded.
Accordingly
the completion of the expert’s testimony and the issue of my
recusal remained at a standstill.
Request
for assistance and court’s offer to assist with case proceeding
89.
The level 5 hard lockdown implemented on 26 March
2020 affected the ability of all detainees to consult or otherwise
communicate
with their lawyers, let alone family.  It also
affected the ability of those out on bail to cross provincial borders
in order
to attend court.
The
restrictions therefore affected Porritt because he is a trial
detainee and Bennett because she is resident in Knysna.
90.
By the end of June the lockdown had been eased to
level 3, regulations had been issued by the Minister of Justice and
Correctional
Services in relation to detainees whose cases were part
heard before the courts and the Judge President had issued directives
regarding
the utilisation of online electronic uploading of court
papers as well as the hearing of cases by way of a video-conferencing
platform.
91.
By this
stage Bennett had filed her replying affidavit in the recusal
application.  This left outstanding Porritt’s replying

affidavit and the submission of heads of argument by all counsel.
Considering that Bennett had all but completed her cross-examination

of McPhail I also considered it appropriate to engage the parties on
the possibility of completing her testimony during the lockdown.
[19]
92.
It must also be accepted that going forward, for
as long as there is a lockdown (and irrespective of its level)  both
accused
are at higher risk of contracting Covid-19 because of their
ages; Porritt is 69 and Bennett 71 years of age.  This must
inform
the manner in which a court seeks to achieve the objectives of
the criminal justice system; a fair trial in an expeditious manner

and bearing in mind that Porritt is in custody.
To
this end the court requested assistance from the parties and
indicated possible assistance the court might provide; for example
by
directing the Correctional Facility to provide confidential audio
facilities.
93.
This appears from the email sent through my
registrar on 30 June 2020, the relevant portions, insofar as Porritt
is concerned, read:
“
The
Judge is advised that the trial has been remanded to 27 July, which
is the first day of the next term, for the purpose of a
further
remand. It is therefore necessary to plan the way forward from then
and if necessary to issue orders or directives.
The
attorneys are requested to obtain instructions from their respective
clients in respect of the recusal application and to assist
the court
in noting in the reply their respective client’s position with
regard to completing the evidence of the witness
presently under
cross-examination.
In
order to properly consider the way forward while the Covid-19
lockdown is still in place and various restrictions are in force:
1.
Mr Porritt and his
legal representatives are requested to advise;
a.
Whether Mr Porritt
has a set of the recusal papers in his possession and if not, which
papers does he not have?
b.
Why Correctional
Services should not be directed to enable confidential telephonic
consultations to take place between him and his
legal representatives
in order to complete the replying affidavit
c.
On the assumption
that the current lockdown directions relating to Correctional Service
facilities remain as they are; if Correctional
Services provides
confidential telephonic facilities between Mr Porritt and his legal
representatives what, if anything, precludes;
i.
His replying
affidavit from being finalised and delivered by 27 July 2020?
ii.
His heads of
argument being delivered by 3 August 2020?
d.
Whether there is
any basis upon which Correction Services and SAPS will enable Mr
Porritt to attend court for the completion of
the present witness’s
testimony and whether the court can in any manner assist in
facilitating his attendance
e.
Why the cross
examination of the present witness cannot be completed via
tele-conferencing.”
94.
Unbeknown
to me at the time, Mendelson Attorneys Inc (“
Mendelsons”)
had replied to the email of 30 June in a letter of 2 July and also
responded to the State’s position in a follow up email
of 7
July.
[20]
95.
The portions of the 2 July email relevant to the
recusal application read:
“
1. Mr Porritt
is in possession of all of the papers filed to date in the recusal
application. We confirm that we have not consulted
with Mr Porritt on
any of the papers filed since the beginning of the lockdown in March,
including the State’s answering
affidavit and Ms Bennett’s
replying affidavit, nor have we consulted with him on his replying
affidavit;
…
..
2. Although we are not
mandated to make any submissions on behalf of our client in relation
to the criminal trial, in order to assist
the court we respectfully
submit that in matters such as a criminal trial of such complexity
and in circumstances where our client
is unrepresented, and in a
recusal application which may result in far reaching consequences,
telephonic consultations and/or teleconferencing
facilities will not
be sufficient to enable Mr Porritt to effectively conduct his cross
examination of the present witness, or
prepare his replying
affidavit.
3. We are however in
discussions with the State in order to try to make arrangements with
our client and the DCS to enable us to
consult with our client in a
safe environment in order to prepare and file his replying affidavit
in the recusal application, rather
than attending at the Johannesburg
Prison where all visits are forbidden.
4. If we and the State
are able to come to an arrangement regarding the above, this will
dispense with the need for the Honourable
Judge to issue any
directives with regards to the provision by the DCS of telephonic
consultations or the date by which our client’s
replying
affidavit and heads of argument in the recusal application must be
filed.
5. We believe that we
should bring to your attention that the conditions are now extremely
dangerous at the prison with two officials
having died in the past 2
days of Covid-19 which includes the acting head of the prison, Mr
Dlamini. The whole of section C2 of
the prison containing some 900
detainees has been placed in quarantine, as have some of the nurses
at the prison clinic. We are
aware that prisoners have died.
6. We also understand
that the DCS officials are extremely worried about prisoners being
transported in trucks to and from the court
and SAPS holding cells
where there are daily new arrivals whose coronavirus status is
unknown.
7. Having regard to
the above we respectfully submit that at this juncture it is not
necessary, and it may even be counterproductive,
for the Honourable
Judge to issue any directives relating to the recusal application,
particularly as we and the State are working
together to deal with
the constantly changing landscape.”
96.
It is evident from Mendelsons’ response
that:
a.
As
at 2 July Porritt had been in possession of a draft replying
affidavit since prior to lock down but had not been able to consult

on the papers filed with any of his legal representatives since the
beginning of the lockdown
b.
Because the recusal application may result in far
reaching consequences, telephonic consultations or teleconferencing
facilities
will “
not be sufficient to
enable Porritt to … prepare his replying affidavit”
c.
They were attempting to arrange consultations
with the prison officials so that Porritt’s replying affidavit
could be prepared
in “
a safe environment
…
rather than attending at the
Johannesburg Prison where all visits are forbidden.”
d.
If
such arrangements could be made with the State then it would be
unnecessary for the court to issue any directives with regards
to the
prison officials providing telephonic consultations or determining
the date by when the replying affidavit or heads of argument
are to
be filed.
e.
It
was impressed on the court that the conditions at the facility were
“
extremely dangerous
”
and that prison officials were “
extremely
worried about prisoners being transported in trucks to and from the
court and SAPS holding cells where there are daily
new arrivals whose
coronavirus status is unknown”
.
f.
It
was indicated to the court that not only was it unnecessary but
possibly even counterproductive (whatever that might mean) if
I
issued “
any   directives
relating to the recusal application, particularly as we and the State
are working together to deal with
the constantly changing landscape”
.
97.
Despite effectively assuring the court that they
were looking for a way forward which rendered the suggested roadmap
contained in
the court’s email of 30 June unnecessary, their
correspondence to the court reveals that they have done absolutely
nothing.
Indeed
in a follow up email of 7 July 2020 Mendelsons, after stating that it
had no mandate to deal with whether or not MacPhail
could carry on
with her expert testimony, wrote:
“
We reiterate
that we have not obtained any instructions from our client and have
no mandate to make any submissions on his behalf
insofar as the
criminal trial is concerned.
We do however
make the following submissions in relation to the recusal
application:
1.
There are no videoconferencing facilities
available at the prison. Our client will therefore not be able to
consult with his legal
representatives by way of videoconferencing
facilities.
2.
In order to finalise our client’s
replying affidavit we will have to consult with our client on the
State’s lengthy
Answering Affidavit and obtain instructions in
relation thereto. The draft replying affidavit in our client’s
possession
was prepared by our client’s legal representatives
without any input from our client at all. Our client will need to
spend
a number of our hours debating and consulting with his legal
representatives in order to finalise his replying affidavit.
3.
Telephone consultations in respect of our
client’s replying affidavit would be wholly inadequate as we
would be required to
conduct a four-way conversation without being
able to interact properly. This arrangement would also be impractical
as the already
short-staffed prison authorities would have to arrange
that a member of the DCS supervises our client whilst he is on the
phone
to his legal representatives, and our client’s right to
confidential and privileged legal consultations may be compromised
as
a result thereof.
4.
In any event, I called the prison this
morning and asked one Mr De Beer, a member of senior management at
the prison, whether our
client would be permitted to talk to his
legal representatives for a number of hours at a time, and Mr De Beer
advised that this
is extremely unlikely, although the discretion lies
with the Head of the Prison and his permission would have to be
sought (however
it is unclear who the head of the prison is due to
the recent passing of Mr Dhlamini from the Coronavirus).
5.
Finally, we respectfully submit that it is
in the interests of justice that the recusal application be heard in
open court.
Ruling
of 8 July 2020 and subsequent events
98.
In view of the correspondence received from
Bennett and at that time unaware that Mendelsons had responded to the
request contained
in my registrar’s email of 30 June it was
somewhat surprising to be informed that Porritt had set an urgent
bail application
down for hearing.
I
immediately issued a set or rulings and directions that would, among
other things, allow the court to establish whether Porritt
through
his legal representatives was able to prepare and file court papers.
This was the purpose of making the order which the
court did.
99.
I am satisfied that in view of the correspondence
received, this was a practical way of fairly determining by when the
replying
affidavit should be filed since little assistance was being
provided by Porritt, while Bennett’s position remained that her

application should be dealt with separately because of the delay. As
stated earlier I believed that Porritt’s attorneys had
not
responded to the email of 30 June. Although I was obviously wrong in
that regard, the contents of their letter would only have
supported
the decision I took.
The
court also afforded Bennett a final opportunity to deal expressly
with the recusal application, either personally or through
her legal
representative.
100.
The portions of the ruling and directions which
were issued on 8 July 2020 and which were relevant to Porritt
provided that:
1.
Mr Porritt’s legal representatives
are required by no later than 13h00 on Thursday 9 July 2020  to:
a.
provide by email copies of all
communications to the Court for the allocation of a court or judge to
hear the further bail application
of Mr Porritt and the signed copies
of the bail application including all founding, supporting and
replying affidavits, if any,
for purposes of enabling the Judge to
establish whether Mr Porritt has been able to depose to affidavits,
provide instructions
and make arrangements to attend court ;
b.
respond by email to paras 6 to 9 of the
State’s email of 6 July;
2.
Mr Porritt  and his legal
representatives are required by no later than  13h00 on Thursday
9 July 2020 to deal in an email
with Mr Porritt’s position
regarding the hearing of the recusal application and the continuation
of the trial in regard to
the completion of the present witness’
testimony ( i.e. that of Ms MacPhail) as requested in the email sent
on behalf of
the Judge on 30 June 2020;
…
7.
The judge will make appropriate
directions, rulings or orders in regard to the continuation of the
trial and the recusal application
on such responses as he receives by
13h00 on Thursday 9 July 2020 and which includes those he has already
received.
101.
On 9 July Mendelsons replied on behalf of Porritt
and advised that his responses were contained in the letter of 2 July
and the
reply of 7 July to the State’s letter of 6 July.
102.
As far as Porritt was concerned the documents he
was required to produce in terms of the rulings and directions of 8
July revealed
that Mendelsons was able to mount a formidable
application for Porritt’s urgent release at short notice. There
was therefore
no acceptable reason why the completion of a replying
affidavit which he had been able to work on since at least April
could not
be completed during a consultation which the State in its
email (of 10 July) said it had already suggested to Mendelsons be
held
on 16 July.
103.
It was necessary to have regard to these
documents to establish whether Porritt and his legal team were able
to file the long outstanding
replying affidavit in this matter.
On
perusing them for this purpose only, the court was satisfied that,
despite his and his attorney’s protestations to the
contrary,
Porritt was well able to finalise his replying affidavit promptly and
in a written judgment reasons were provided based
exclusively on a
perusal of the documents I had called for.
[21]
104.
The purpose of obtaining the affidavits was
because Porritt had failed to file his replying affidavit when
claiming an inability
to do so despite being able to mount an
impressive urgent bail review application with great expedition.
In
managing the case the court was entitled to assess whether, and if so
by when, Porritt was reasonably able to file his replying
affidavit.
The only way to objectively gather the necessary information was to
consider the length of the affidavits he signed
in the bail review,
the time lines afforded and the ability to provide instructions
urgently as well as to edit what he had received.
The
clear purpose was to ensure that the recusal application did not drag
on interminably, considering little assistance was coming
from
Porritt’s attorneys.
105.
Being an application for bail based on new facts,
namely the outbreak of COVID, there would have been no reason for me
to believe
that issues such as previous convictions would be dealt
with. There was nothing potentially prejudicial.
106.
Porritt’s contentions therefore do not get
off the ground: The reason for seeking the information was clear, its
purpose equally
clear on an objective analysis of the events.
Moreover this court can disabuse its mind of anything that might
possibly be construed
as prejudicial.
To
stay with the idiom: the accused are clutching at straws. Porritt
appreciated the excessive delay in bringing the application
which
resulted in three witnesses being extensively cross-examined when, at
the time a postponement was sought in August 2017 to
bring a recusal,
the first State witness was still being led in chief.
[22]
THE
OTHER GROUNDS FOR RECUSAL INCLUDING THE REFUSAL OF THE POSTPONEMENT
IN AUGUST 2016
107.
The accused have been selective in the extracts
from the transcripts. I believe that there are enough decisions and
interventions
by the court that went in favour of the accused, that
ensured that potentially prejudicial evidence for which no proper
foundation
had been laid was excluded (the so-called Granny letter
comes to mind) and which ensured that the accused had independent
counsel
to advise them of their rights and duties of
cross-examination.
108.
The accused make much of my refusing a
postponement in August 2016 or in not giving a written decision.
As
with all matters before me I engage the parties in respect of
arguments presented so as to better understand the issues, and
also
to test the possible strengths or weaknesses of the argument. It is
difficult to appreciate why the reasons for the orders
given will
advance any argument for my recusal which is not already apparent
from the transcripts of the hearings in question and
the actual
orders that were made.
[23]
109.
It will be
recalled that after the accused had pleaded in early July 2016 the
case was remanded to 19 August 2016, which was already
three weeks
into the new term, to hear argument on the special plea of
jurisdiction and, if unsuccessful, the first State witness
would then
commence with his testimony. By agreement the trial was then
scheduled to continue through to the end of term
[24]
.
The accused did not precognize the court on 7 July of any other
court hearings which might interfere with the dates agreed
upon for
the continuation of the trial.
A
party is bound by dates agreed upon unless there is some unexpected
intervening event.  This was not such a case.
110.
Furthermore,
by this stage the trial had already experienced a number of
postponements at the accused’s request. It was now
time for the
trial to proceed as the basis for this postponement could not be
justified on any rational basis.
[25]
111.
Porritt
takes the position that my failure to postpone the trial so that he
could attend the Lamax civil matter in September prejudiced
him in
that it has precluded him from appointing counsel of choice.
Factually that is incorrect. Legally it is also incorrect:
The
Constitutional Court has most recently determined that a litigant, in
not too dissimilar a position as Porritt, cannot simply
seek a
postponement of a trial that has already been set down to engage
counsel of choice.
[26]
Accordingly the basis of Porritt’s contention cannot be
justified.
[27]
112.
The State has sought to deal with the recusal on
a far broader basis, contending that this is part of an overall
strategy. I do
not believe that this needs to be considered nor any
of the State’s other arguments which would require credibility
findings
or findings of improper motive.
CONDUCT
OF LEGAL REPRESENTATIVES
113.
More and more recusal applications are brought as
a tactical device or simply because the litigant does not like the
outcome of
an interim order made during the course of the trial. The
seeming alacrity with which legal practitioners bring or threaten to
bring recusal applications is cause for concern.
The
recusal of a presiding officer, whether it be a magistrate or a
judge, should not become standard equipment in a litigant’s

arsenal but should be exercised for its true intended objective,
which is to secure a fair trial in the interests of justice in
order
to maintain both the integrity of the courts and the position they
ought to hold in the minds of the people who they serve.
114.
Judges are expected to be stoic and thick
skinned. That comes with the territory.
What
is expected of a judge in presiding over a matter is clear, as is the
right of a litigant to raise the impropriety of a judge’s

conduct and, without fear, seek his or her recusal. There can also be
no doubt that the right to seek a recusal is embedded in
the right to
a fair trial and should not be stifled even indirectly.
115.
A question
that does not seem to have occupied the attention of the courts is
the responsibility, if any, of litigants or their
legal
representatives in pursuing a recusal application. The concern, as
expressed earlier, is that more and more recusal applications
are
being initiated as a strategic tool
[28]
.
So too raising issues where the court may have to make credibility
findings.
[29]
116.
One would like to believe that where a judge’s
character is seriously impugned and clearly defamatory statements are
made
at a personal level in respect of an alleged extra-curial event
or incident that the legal representative should bring a more
analytical
appraisal to bear, particularly where the judge’s
recusal was not pursued expeditiously. I should have added, if I had
not
already, that both legal teams in drafting papers and considering
their arguments did not appear to have read or properly considered

all the judgments I had already delivered in this matter. I have
already provided the illustration regarding the orders I made
against
SARS and the content of the court’s reasons.
117.
Save for raising the concern, these are perhaps
matters which should be left for a higher court to consider in due
course, not the
court directly impacted by it.
THE
EMBARGO
118.
An embargo was placed on the dissemination of the
contents of the s 317 application, the subsequent recusal application
and my SARS
tax statement. As I understand it the tax affairs of
every citizen are confidential unless some constitutionally sound
reason trumps
it. In the present case the accused have accepted the
accuracy of my tax statement.  However preceding that acceptance
the
accused’s papers contain defamatory statements and innuendo
concerning me.
119.
It would be improper for this court to itself
engage in the question of whether the defamation is protected by one
of the available
defences or whether the broader issues of freedom of
speech, in the circumstances of this case and the underlying reason
for the
allegations being placed in court papers (which then render
them automatically in the public domain unless a court directs
otherwise),
trump
crimen iniuria
.
Moreover in terms of Chapter 6 of the
Tax Administration Act 28 of
2011
tax assessments and other taxpayer information remain
confidential under pain of criminal sanction. In the most recent case
before
the Gauteng Division Mabuse J did not find an exception to
these provisions even on the basis of a “
just
cause
” entitlement contended for by the
Public Protector. See
Commissioner; SARS v
Public Protector and others
2020
(4) SA 133
(GP);
[2020] 2 All SA 427.
120.
I therefore consider it appropriate that any
person who wishes to publish any part of the papers filed in the
recusal application
which are defamatory or to which the provisions
of the confidentiality provisions of the
Tax Administration Act apply
shall bring an application for leave to do so before this court, in
which event it will then be referred to the Judge President
for the
constitution of a court to hear the matter.
ORDER
121.
Accordingly on 18 September 2020 the court
dismissed the applications of both accused for the recusal of the
presiding judge.
122.
The court furthermore orders that any person who
wishes to publish any part of the papers filed in the recusal
application which
are defamatory or to which the confidentiality
provisions of Chapter 6 of the
Tax Administration Act 28 of 2011
apply shall bring an application for leave to do so before this
court, in which event it will then be referred to the Judge President

for the constitution of a court to hear the matter.
__
(SIGNED)__
SPILG, J
DATE
OF HEARING:

12
September 2020
DATE
OF ORDER:

18 September 2020
DATE
OF JUDGMENT:

12 October 2020
For
Second Applicant (Accused no 1):

Adv J Du Toit SC
Adv J Raizon
Mendelson
Attorneys Inc
For
First Applicant (Accused no 2)

Adv MM Antonie SC
Adv H van Eetveldt
Elmarie Verster-Ingham
Attorneys
For
the State:

Adv EM Coetzee
Adv JM Ferreira
National Prosecuting
Authority
[1]
Porritt and another v The
National Director of Public Prosecutions and others
2015
(1) SACR 533 (SCA); [2015] All SA 169
[2]
In particular I have in mind the complaints regarding the s 67
enquiries which cannot be supported because a Full Court found
that
my decision was correct in respect of Porritt being unable to
explain his absence on one of the occasions and no criticism
was
levelled regarding the evidence the court either required or
declined to hear.  Furthermore the SCA refused the petition.

Having regard to the lengthy affidavits filed it appears superfluous
to cover ground already raised by the accused before other
courts
and directly or indirectly rejected by them.
[3]
By September 2019, Bennett had completed her cross-examination of
one of the material witnesses, an alleged accomplice, while
the
court had already held that Porritt had been unnecessarily delaying
the completion of his cross-examination of this witness.
The second
witness for the prosecution, a forensic accountant giving expert
testimony, who had been interposed had also completed
his evidence
in chief and was already being cross-examined by Bennett
[4]
Shackell
at
paras 19-22 per Brand (AJA at the time)
[19] The approach thus formulated
in the SARFU-case was refined in the SACCAWU-case. I do not propose
to restate all the principles
that were articulated by the
Constitutional Court in those two cases. I will only highlight those
that are of particular relevance
in this matter. First, the test is
whether the reasonable, objective and informed person would on the
correct facts reasonably
apprehend that the judge will not be
impartial.
[20] Secondly, the test is an
objective one. The requirement is described in the SARFU and SACCAWU
cases as one of “double
reasonableness”. Not only must
the person apprehending the bias be a reasonable person in the
position of the applicant
for recusal but the applicant must also be
reasonable. Moreover, apprehension that the judge may be biased is
not enough. What
is required is an apprehension, based on reasonable
grounds, that the judge will not be impartial.
[21] Thirdly, there is a built in
presumption that, particularly since judges are bound by a solemn
oath of office to administer
justice without fear or favour, they
will be impartial in adjudicating disputes. As a consequence, the
applicant for recusal
bears the onus to rebut the weighty
presumption of judicial impartiality. As was pointed out by Cameron
AJ in the SACCAWU-case
(par 15) the purpose of formulating the test
as one of "double-reasonableness" is to emphasise the
weight of the burden
resting on the appellant for recusal.
[22] Fourthly, what is required of
a judge is judicial impartiality and not complete neutrality. It is
accepted that judges are
human and that they bring their life
experiences to the bench. They are not expected to divorce
themselves from these experiences
and to become judicial
stereotypes. What judges are required to be is impartial, that is,
to approach the matter with a mind
open to persuasion by the
evidence and the submissions of counsel.
[5]
Greenfield Manufacturers
(Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd
1976 (2) SA 565
(AD)
per
Harms AJA (at the time) at 570E-F
[6]
The full extract reads:
“
. . . a Judge is not simply
a ‘silent umpire’.  A Judge ‘is not a mere
umpire to answer the question “How’s
that?”’
Lord Denning once said. Fairness of court proceedings requires of
the trier to be actively involved in the
management of the trial, to
control the proceedings, to ensure that public and private resources
are not wasted, to point out
when evidence is irrelevant, and to
refuse to listen to irrelevant evidence. A supine approach towards
litigation by judicial
officers is not justifiable either in terms
of the fair trial requirement or in the context of resources.”
[7]
SARFU
at para 45
[8]
I cannot recall when July 2002 was first mentioned by Bennett, as
opposed to simply referring to 2002 unpaid taxes. In either
event
and as set out below, the assessment, which is the only lawful
manner of raising a tax liability, could only have come
into
existence
prior
to
the 2002 February tax year end.
[9]
Bennett had in fact brought a direct petition to the Supreme Court
of Appeal. The SCA dismissed the petition.
[10]
Section 35
[11]
During this period it was also necessary to interpose Prof Wainer
whose testimony commenced on 3 June 2019 until 24 October 2019.
The
court granted an order to interpose this witness on 6 February 2019.
At that stage Bennett claimed that she would require
about two weeks
to complete Milne’s cross-examination while Mr Porritt at that
stage still had nine days of his allotted
period which the court had
afforded him to complete the cross-examination of this witness. The
court had made this order under
s 166(3) initially on 5 June 2018
and subsequently extended it.
[12]
On 5 June 2018 the following order was made under s 166(3) of the
CPA:
1.
By 16 August 2018
(being the second week of the third term and having regard to the
intervening court vacation as well as the
other ordinary exigencies
including that it is unlikely that the court will be able to sit on
any of the Fridays for the duration
of this term), Accused 1, Mr
Porritt, shall have put his case to Mr Mine in regard to at least;
a.
the allegations
by Milne regarding the misrepresentations contained in the
prospectus, his allegations regarding how shareholder
funds were
invested, whether Porritt was aware of how shareholder money was
invested, whether it was in fact invested in terms
of the
prospectus, whether Porritt was involved in the investment decisions
at any stage and if so what his defence is in regard
to the charges
that he is guilty of making fraudulent misrepresentations to the
shareholders.
b.
The allegations
by Milne that shareholder funds were not invested in terms of the
prospectus or were stolen and if so whether
he, Porritt, was
involved in the decision not to invest them in terms of the
prospectus or involved in the theft of shareholder
funds, and if so
what his defence is in regard to the allegation that he is guilty of
the theft of such funds;
c.
the evidence by
Milne regarding the  alleged misrepresentations:
i.
made to Grant
Thornton Kessel Feinstein and Godfrey Shev regarding the spread of
the PSCGG fund during the period 10 July to 17
July 2000;
ii.
made regarding
the net asset value of PSCGG that was published on a daily basis
during the period set out in the charge sheet;
iii.
made regarding
the funds loaned by PSCGG to Tigon Ltd and EBN Trading (Pty) Ltd;
iv.
made regarding
PSCGG’s financial statements  for the period ending 30
June 2001;
v.
made regarding
the correctness of net asset value of the PSCGG for 30 June 2001 as
was certified by the auditors
vi.
made regarding
the reports by the auditors to members of PSCGG;
1.
of  PSCGG’s performance in respect of its stated
net asset value as at 30 June 2002 with reference to stated weighted

average performance for the year ended June 2002 of the All South
African Unit Trust;
2.
that the amount owed by PSCGG to Tigon in terms of the
underwriting agreement was R31 054 755.00
and if there were such
misrepresentations whether he was a party to them, whether he had
the requisite intent and what his defence
is in regard to these
charges
d.
the evidence
of Milne regarding the alleged misrepresentations relating to;
i.
the responses to
the attacks on PSCGG being unfounded
ii.
the buyback
tender process
iii.
whether
shareholders’ money had “gone into the pocket of Mr Gary
Porritt”;
iv.
whether PSCGG
had exposure to Tigon’s share price or the share price of
Shawcell  or any of Tigon’s other subsidiaries
or
associated companies (“the Tigon Group”);
v.
whether Tigon or
companies in the Tigon Group or Shawcell had a loan account with
PSCGG;
and if there were such
misrepresentations whether he was a party to them and what his
defence is in regard to these charges
e.
the evidence of
Milne in regard to the alleged ramping up of the Tigon and Shawcell
shares as a result of the alleged PSCGG fraudulent
scheme. And if
there was such ramping up whether he was a party to it and what his
defence is in regard to such allegations and
the charges relating to
market manipulation of the share price
f.
whether Porritt
denies  that his signature or handwriting, as the case might
be,  appears as alleged by Milne on any
of the documents which
have been admitted into evidence
2.
If Accused 1
fails to do so by 16 August in respect of any of these issues or
documents and unless good cause is shown in a written
application
deposed to by him under oath ;
a.
he will be deemed
to have exercised his right not to disclose his defence in relation
to these issues and will be precluded from
subsequently putting his
case to Milne in respect of those issues or challenging that the
handwriting and signatures on the admitted
documents are not his;
b.
he will be
limited to a further 15 court days to conclude his cross examination
of Milne.
[13]
On 23 May 2019 the following order was made in respect of Bennett:
1. By 29 May 2019 Ms Bennett shall
have put her case to Mr Mine in regard to the outflow from Synergy
of the R115.3 million by
reference to whether she was aware of any
transaction which justified it and she was aware of such a
transaction to deal
with  Milne’s contentions that the
entry in the reconciliation by Mr Ade was fictitious or manufactured
by meaningfully
challenging the reasons Milne gave for so claiming
2. If Ms Bennett fails to have
done so by 29 May 2019 and unless good cause is shown in a written
application deposed to by her
under oath she will required to
conclude her cross-examination by 31 May 2019.
[14]
The State prepared five annexures to its heads of argument detailing
the progress of the case since it first came before Borchers
J, the
applications which were brought pre-plea and the number of days in
court hearing the testimony of witnesses (split between
evidence in
chief, cross examination and re-examination) as well as
postponements. Although they contain descriptions which are

subjective, they paint a general picture of the length of time it
has taken to reach this stage and the number of intervening

applications, postponements, events and incidents
en
route
.
[15]
I was concerned with the speed at which Bennett was able to send to
Noseweek
a transcript of proceedings in which she had placed defamatory and
untrue matter before the court and was concerned that my private
tax
statement which was given to the parties to allay any genuine
concerns would now enter the public domain.
[16]
The KPMG Report contained either allegations or conclusions
regarding the existence of a “
rogue
”
unit and the  alleged involvement of very senior SARS’
officials in a dispute on behalf of the taxpayer in
question in
respect of his dispute with Porritt pursuant to an introduction by
the then Police Commissioner.
[17]
The court identified some 25 pages from the KPMG Report (albeit that
some portions were redacted because they did not relate
to the
matter) and 54 pages from the SARS Manual. The KPMG report was
subsequently published elsewhere. The accused do not contend
that I
omitted to include any relevant part of the Report.
[18]
Porritt must still cross-examine this witness
[19]
The court had already ruled that the hearing of witnesses would not
be held in abeyance while the accused brought their recusal

application.
[20]
On enquiry my registrar advised that her server was down and on
refreshing it these emails did not come up.
The
court only became aware of them from the content of Mendelsons’
subsequent email of 8 July.
[21]
See the reasons for the order of 13 July which are set out in the
decision of 17 July 2020 as to why the court required sight
of the
relevant correspondence and Porritt’s affidavits filed in the
new bail application. The court did no more than establish
the
amount of time Porritt and his lawyers needed to bring the
application and respond. The court’s eye was caught by what

appeared to be matter that was not foreshadowed in the application.
This allowed it to reasonably assess how long it would take
for
Porritt to deal with it, bearing in mind that he had to communicate
his instructions outside the prison and their contents
would then
have to be considered and inserted in a draft or final document
which Porritt would have to deal with while incarcerated.
[22]
It will be recalled that the accused indicated that they needed two
months to bring a recusal application. The cross-examination
of the
first State witness, Milne, only commenced on 12 February 2018; some
six months after the postponement was requested.
[23]
I had directed that the accused be provided with a running
transcript of the proceedings, although from time to time there were

delays.
[24]
The dates agreed upon were from 19 August through to 23 September.
For sake of completeness: Attorney Cohen argued the special
plea to
jurisdiction on behalf of Porritt while Bennett argued in person.
Argument was heard on 19, 20 and 22 August. Judgment
was delivered
on 24 August dismissing the special plea. Pursuant to an agreement
between the accused and the State I heard argument
for the
postponement on 31 August.
[25]
The postponement was requested because the accused claimed that they
had to attend the Lamax matter in order for Porritt to have
funds
released from a Trust so that he could engage counsel of choice,
being Adv van Schalkwyk SC, for the trial before me. Suffice
that
Adv Riley, who argued the postponement, was unable to state whether
Adv van Schalkwyk, if he was appointed, would be able
to commence
the trial within the year (despite his attorney being in court).
Moreover there was no guarantee that the Lamax matter
would run. The
indications were that this was unlikely and there was nothing to
suggest that an alternate date could not be readily
obtained. The
Lamax matter was still not ripe for hearing when Porritt last raised
the claim that I had “
scuppered
“his ability to
obtain counsel of choice. This would have been sometime this year.
Accordingly the Lamax matter had still
not been set down for hearing
by the beginning of 2020- a delay of over 3 years which is
incongruous if Porritt’s ability
to obtain funds depended on
it running.
[26]
Ramabela v S; Msimango &
others v S
[2020] ZACC 22
(16 September 2020) at paras 48 and 50. The accused’s history
of obtaining counsel is unnecessary to repeat as it was

comprehensively dealt with by the SCA in
Legal
Aid Board v The State & others
2011 (1) SACR 166
(SCA) per Ponnan JA
[27]
The reasons contained in this section for refusing the postponement
of the trial in August 2016 will constitute the reasons for
that
order.
[28]
The risk of recusal applications being used as a strategic tool is
that far from securing the integrity of the court, continual

unfounded aspersions on judges may bring about a loss of faith in
the judiciary as a whole and bring it into disrepute. Compare
the
Liberian Supreme Court case of
Atty.
Isaac Jackson v The Liberian Maritime Authority of the Republic of
Liberia and others
(4 September 2020)
per
Chief Justice Korkpor and
the sanction the court imposed on the appellant: Website:
http://judiciary.gov.lr/atty-isaac-jackson-vs-lma-executive-branch-gol-932020/
a
[29]
On occasion courts are obliged to make credibility findings. A trial
within a trial is one of them. Another may be in some interlocutory

matter. Judges are trained to disabuse their mind.  A reason
for a person being untruthful in one situation does not mean
that he
or she will not be telling the truth in relation to the offence
itself or that the State carries any lesser a burden
of proof.
There
are enough cases where a court has warned itself that a person being
untruthful on one aspect does not
per se
taint the whole of
the evidence. There is also a vast difference between the
administrative management of a case and the determination
of guilt
or innocence. Management style therefore does not of itself imply a
bias as has been our collective experience during
our litigation
careers in private practice. Accordingly an accused cannot believe
that he or she is in a no-lose situation where,
if the court does
not believe the version given, in an interlocutory matter or a trial
within a trial (and is required to make
a credibility finding as a
part of the reasons it is obliged to give in the discharge of the
judicial function), that this will
ipso facto
require the
court to recuse itself. If that were so then the proper performance
of the judicial function will be compromised and
the unscrupulous
will devise situations which will leave the judge with little choice
but to make an adverse credibility finding.