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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: SS 40/2006

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: YES

REVISED: YES

23 MAY 2019

THE STATE

V

PORRITT, GARY                                                                                              Accused no 1

BENNETT, SUSAN                                                                                          Accused no. 2

 

REASONS FOR ORDER OF 23 MAY 2019

RE COMPLETION OF CROSS EXAMINATION BY MS BENNETT

Section 166(3) (a) of CPA

 

SPILG, J:

 

23 May 2019

 

INTRODUCTION

1. This is not the first time that the court has been compelled to consider whether Ms Bennett, who is accused no 2, is unreasonably protracting her cross­ examination of Mr Milne.

2. The most recent episode occurred this Monday, the 201h May, when Bennett ignored a court ruling directing her to put her version in respect of the evidence of Mr Milne, an alleged co-conspirator, regarding the fate of a purported loan by Progressive Systems College Guaranteed Growth Ltd (PSCGG) which, according to Milne, represented R115.3 million of investors' money that should have been paid back and the disappearance of which Porritt (again according to Milne) untruthfully sought to justify as being used to acquire Shawcell shares; a transaction which Milne contends is fictitious and manufactured post facto.

3. The ruling was made on Thursday 9 May, after which the case was postponed for just over a week to this Monday. The ruling arose because Bennett, for possibly the third distinct occasion, was cross-examining Milne on why he contended that the loan account debtor was EBN and not Synergy and why he believed that EBN could have been effectively controlled by Porritt. The vehicle used to rehash this topic was the so called "granny letter" written by Milne. Bennett had introduced the letter into evidence after being made aware that its contents may also be used by the State to claim that Milne was not guilty of subsequently fabricating his evidence.

4. I ruled that her right to justice would not be undermined if I stopped this line of questioning and again raised her failure to question Milne on the broader issue which forms a key part of the State case,; and in respect of which the identity of the actual loan account debtor is immaterial; namely whether PSCGG investor money had been wrongfully appropriated and that the purported transaction reflected in an accounts reconciliation was fictitious or fraudulent.

The issue concerned whether Bennett knew anything about the transaction and, if she did, whether it was a genuine transaction. I had indicated to Bennett, either on that occasion or earlier, that the amount was said to represent a major part of PSCGG's assets, that Milne claimed to have been unaware of such a transaction and that there was no written agreement or paper trail such as a resolution (whether special or otherwise), brokers note, scrip or identity of the party to whom payment was made. Bennett persisted that she could chose when she would put her version.

5. Even prior to this occasion I had canvassed the same point when Bennett had been cross-examining Milne and then appeared to shy away from putting a version. She claimed that she was at liberty to conduct the cross-examination as she chose.

Back in February this year she had dealt with the same topic (regarding the identity of the loan debtor and how Milne could contend that Porritt was the controlling mind). This resulted in an objection from Adv Coetzee on behalf of the State on which I then ruled.

6. The issues dealt with then, and the grounds for my decision are relevant to the question of whether Bennett has continued to delay the proceedings by rehashing the same questions but failing to deal with key issues and, if she has, what order should be made.

7. However it is necessary to set out the relevance of the alleged loan transaction in order to demonstrate that it is a key issue which implicates Bennett. It is also advisable to enlighten her, if she should claim to be unaware of it at a later stage, of the type of issues one would expect an accused in her position to cover in respect of this key part of his testimony- and that the court considers this aspect of Milne's testimony to be highly relevant.

 

RELEVANCE OF THE ALLEGED LOAN TRANSACTION TO THE CASE AGAINST BENNETT

8. The cross-examination of Milne by both Bennett and Porritt reveals that they do not dispute that investors' money was transferred from PSCGG's account to either EBN Trading (Pty) Ltd or Awethu Trust and that at some stage was treated as a loan, albeit that the identity of PSCGG's debtor is in dispute. Milne's testimony is to the effect that the money was then misappropriated.

9. Milne further claims that the only reference to the alleged transaction whereby this sum was appropriated was a line note which he discovered in a reconciliation that Mr Porritt, who is accused no 1, produced in court papers during May 2003. It was produced by Porritt when opposing the grant of final winding-up orders against both EBN and Awethu. He deposed to the main affidavit on behalf of Awethu whose trustees were cited as Messrs Brown and Knight and to the EBN's affidavit in his capacity as its co-director.

10. In opposing the grant of final winding-up orders Porritt claimed that all investor money received from PSCGG was not an indebtedness of either EBN or Awethu but of Synergy Management Systems (Pty) Ltd (Synergy). He also alleged that the full amount had been repaid "by the purchase of shares". In support of this Porritt attached to his papers a reconciliation which he said had been prepared at his request by Mr Ade, an accountant employed by Synergy.[1]

The reconciliation is Annexure PD to Exhibit Q1.

11. Milne further contended in his evidence that the entry can be demonstrated to be fictitious on a number of grounds which include that he was unaware of it, that the price at which the deal was purportedly concluded would have resulted in the shares being acquired at a grossly inflated price since at the time they were virtually worthless and their acquisition therefore could not have been justified on any rational basis. Milne further contends that there is no paper trail showing who the shares were acquired from, or the identity of the broker involved or who the amount was paid to.

Synergy was still in existence at the time the reconciliation was prepared. The line item in question identifies the transaction as a private deal concluded on 25 September 2001 for the purchase of Shawcell shares in an amount of R115 301 974.70.

12. The relevance of Milne's testimony on this score to the State case against Bennett is obvious. She does not dispute that at the time of the purported transaction relied upon by Porritt in his affidavit opposing the grant of final winding-up orders she was a director of both PSCGG and of Synergy, which according to the version put by her to Milne, was the true borrower of the investor funds (not EBN or Awethu as contended for by Milne).

13. Bennett has continually stated that she will be putting her version to Milne and does not intend exercising a right to remain silent. Having made that election the question is whether the manner in which she has addressed this part of the case, whether considered in isolation or having regard to the totality of her cross­ examination, has been to delay proceedings.

14. Aside from disputing Milne's version of why and when PSCGG lent investor money that had come into PSCGG Bennett also disputed Milne's claims that the debtor was EBN. She has cross-examined Milne repeatedly on it. She put to him, as had Porritt, that the debtor was Synergy a company within the Tigon group. She also put to him that EBN was not a Tigon linked company while Milne contends that EBN was under the ultimate control of Porritt; an assertion both Bennett and Porritt dispute. Bennett has revisited the same issues regarding the identity of the borrower and whether it was under the direct or indirect control of Porritt on a number of occasions.

15. Despite doing so she has failed to deal, on any of these occasions, with Milne's allegations regarding the appropriation of R115.3 million of investor money and his contention that the line item purporting to justify it on the basis of being used to acquire Shawcell shares is fictitious or manufactured for the reasons he has given or for that matter whether this was in accordance with the terms of the prospectus.

16. On the basis that Bennett does not dispute that she was a director of Synergy and bearing in mind her version that this was a loan in the books of Synergy, then if she intends putting a version, she would need to deal with whether she was in fact aware of the transaction and if so to deal with Milne's testimony that it was a fictitious transaction or manufactured after the event and that there is no paper trail of it, whether in the form of script, brokers note or payment.

17. While it is accepted that a lay person may have to be treated differently to a counsel or an attorney, it is necessary to indicate to Bennett at this stage that the skill with which she has argued applications and her cross-examination so far, and she has assured this court with no legal assistance (save to some extent in one or two applications), will not place her in the category of an ordinary layperson and a failure to deal with these issues, depending on any other testimony that may be presented, may be held against her.

I raise this because in her argument before me she effectively contends that she must be treated as a person with little knowledge of what to put or not to put to a witness. Aside from its direct implications the flow of investor monies out, and to whom, is therefor likely to feature prominently in a determination of whether frauds were committed and if so who would or did gain from it. In this regard, if Milne is to be believed, he has identified the R115.3 million as part of the outflow of investors' money through misappropriation and Bennett has already put to Milne that this money was a loan to Synergy, a company in which she was a director. It appears from what has been put to date that Bennett does not contend for a position other than that the money could only have ended up as a loan to Synergy after having been received via EBN or Awethu.

18. However the issue I need to consider is whether she has been unreasonably protracting her cross-examination of Milne thereby causing the proceedings to be delayed unreasonably and if so whether reasonable limits should be imposed whether in whole or in respect of any line of examination. In doing so I need to go back to the ruling I made on 12 February 2019 and the reasons for it, which in turn considered the way in which Bennett had been conducting her cross­ examination even before that.

 

RULING OF 12 FEBRUARY 2019

19. In February I was required to rule on an objection by the State to a line of questioning by Bennett of Milne. It concerned this very issue. In summary Adv Coetzee for the prosecution objected to Bennett asking Milne whether the prosecution was informed at an early stage of what he claims was the " swap out" of the loan account for Shawcell shares bearing in mind that Milne had testified that he did not inform the then provisional liquidator, Naude, of this. In addition Ms Bennett challenged Milne's description of the transaction, referring to it as a "settlement" of the loan account.

20. The prosecution objected on the basis that Bennett was traversing ground previously covered, that Milne had already dealt with it and that the answer may well be found in Milne's docket statement. The State had already sought to hand the docket statement up on the grounds that Bennett was well aware that Milne's docket statement may contain answers to questions she raised as to whether Milne was recently reconstructing testimony or was deviating from his witness statement, or whether the State had withheld documents from the accused. It was further argued that Bennett was well aware of this.

The state also contended that Bennett was deliberately delaying the proceedings by asking questions in relation to matters which, objectively, are answered by either the documents attached to Milne's docket statement, or insofar as allegations of recent fabrication were concerned are allegedly answered, and in one case explained in the docket statement which Bennett has and would have gone through. Adv Coetzee submitted that she was trawling through the docket statement and cross-examining as she wishes despite knowing the answers, yet carrying on regardless on the basis that there is little risk of the docket statement being handed up.

21. Ms Bennett contended that she was asking these questions because they would demonstrate that Milne was changing his version , that Milne cannot be believed and that it would further demonstrate that the State in fact withheld documents from the accused. I considered it to be evident that each of Bennett's positions was legitimate provided the specific issue had not been canvassed ad nauseam, provided it was not a collateral issue that had already been answered and tested and provided the answer, in relation to the alleged concealing of documents by the State, was not self-evidently incorrect by reference to the documents either produced or contained in, at least, Milne's witness statement.

22. I considered the objection and gave the following ruling:

a. Bennett may refer Milne to what he had said previously in response to questions on this the topic (what Bennett refers to as the settlement of the loan account for shares) put by her and by Porritt but not embark on questioning de nova. She may therefore test his response by reference to the version she intends placing before the court but not solely for purposes of a fishing expedition as that would not now be relevant.

b. Bennett may deal with when the prosecution first became aware from Milne of the "swap of loan account for shares" provided that if it is to show recent fabrication or concealment of evidence then Milne will be entitled to demonstrate whether by reference to his witness statement or the granny letter whether that is correct or not. The State may also raise the objection, in which event Milne will remain outside the court during argument

c. If reference is properly made to the "granny letter" then the court will hear argument as to whether the entire letter should not be placed before it

d. If reference is made to the contents of Milne's witness statement then only the relevant document or passages in the statement may be referred to at this stage. The statement is said to be some 60 pages and at this stage I am not convinced that in such a lengthy document dealing with presumably different offences that a reference to one aspect should enable the introduction of the entire document.

e. The ruling in respect of c and d will apply generally and accordingly Bennett must take care before asking questions the answers to which are to be found in either the witness statement or granny letter

23. In making the order it was necessary to consider a number of issues that are relevant to the present enquiry. In giving reasons I made it plain that Bennett was entitled to test the witness before putting a version. Each question therefore had to be tested on its own merits for relevance or whether it is simply a fishing expedition. I nonetheless expressly mentioned that the right to cross examine may be curtailed under s 166(3) (a) of the Criminal Procedure Act 51 of 1977.

I found, in making that order, that the cross-examination during the course of the previous week had been unreasonably protracted and that, at a stage when one would have expected a version to be put on a self-contained issue, Bennett declined to do so stating that she will put a version later. I also pointed out that there was no discernable reason for declining to do so bearing in mind that she had expressly stated that she intended putting her version to Milne regarding the evidence he had given in chief.

24. I also mentioned in the ruling that Bennett had been given great latitude in framing questions as she was acting as her own counsel with no apparent experience in cross-examination. I had weighed this, and irrespective of her own election not to pursue obtaining counsel or the motive for doing so, I was seriously considering curtailing her cross-examination if she did not complete it within the time she indicated she required.

25. As I further stated in that ruling, Bennett had been unreasonably protracting her questioning of Milne but I would nonetheless allow latitude based on her estimate of when she intended to complete the cross-examination. If she did not and inter alia had not put a version to Milne on crucial aspects of his testimony then I would consider invoking s 166(3) (a).

0cm; line-height: 150%">26. Aside from questioning the purpose of rehashing the same ground on several occasions, I considered it necessary to remind Bennett that as far as the State case against her is concerned, my understanding of Milne's testimony is that he implicates her as being involved in a transaction of which he was unaware but which only surfaced as a line entry (according to him) in Annexure PD of Exhibit Q1. He refers to it as a swop of the loan account for worthless Shawcell shares and contends that the line item was inserted by Porritt in an attempt to explain what happened to investors' money which had been sitting in the loan account. According to Milne the purported transaction was at a figure way above the trading price of the share on the date in question. It is evident that these are very serious allegations made against both accused.

 

SECTION 166(3) (a)

27. Section 166(3)(a) reads:

"If it appears to a court that any cross-examination contemplated in this section is being protracted unreasonably and thereby causing the proceeding to be delayed unreasonably , the court may request the cross-examiner to disclose the relevance of any particular line of the examination and may impose reasonable limits on the examination regarding the length thereof or regarding any particular line of examination".

28. Bennett was given an opportunity to deal with whether or not I should invoke the provision and if I did what time I should allow for her to complete her cross­ examination of Milne.

 

BENNETT'S SUBMISSIONS

29. Bennett submitted that she had not cross-examined for any lengthy period: She had only commenced cross-examining on 8 November 2018 and that the court adjourned within the month on 5 December. On resuming at the commencement of the first term of this year there were also occasions when the court did not sit and that I had been on long leave from the end of February until the beginning of May.

30. She also contended that Milne had been lengthy in his replies and that she did not expect him to deny certain facts that she put to him thereby lengthening her cross-examination.

31. The court took Bennett through the main headings of the Exhibit F2 documents on which Milne had been led in chief in order to have an indication of what she had covered and what was still to be covered. After going through them, Bennett indicated that there were some topics that she was unsure she had covered or needed to cover. Despite this she indicated that she may well finish her cross­ examination within the few remaining days left of this month.

32. The main thrust of Bennett's submissions were two fold. Firstly that I was responsible for her not having legal representation and as a lay person she does not know how far she must go in putting her version to witnesses and that her faculties are slowing down. Secondly she submitted that aside from cross­ examining Milne in respect of where he implicates her she must also deal with her defence of showing that the prosecutorial authority is actually biased against her and that they have filleted documents.

 

LENGTH OF CROSS-EXAMINATION

33. The trial commenced before me in 2015. Numerous pre-plea application were dealt with. The accused pleaded to the charges and Milne commenced testifying in September 2016.

34. The evidence of Milne is not complex. As I understand it, he alleges a conspiracy between himself and the accused to defraud investors by only investing in two shares, both of which are within the Tigon stable, that the share prices were manipulated and that as time went by they fraudulently manipulated the NAV figures, fraudulently effected a share swap between Tigon and Shawcell shares, obtained two additional shares of Brait and Datatec in order to satisfy the certification process, which amounted to a fraud on shareholders and that, according to Milne, investors' money was siphoned out to their prejudice evidenced by the R115.3 million that the State alleges cannot be lawfully accounted for and which was justified in the affidavits filed in the winding-up proceedings against EBN and Awethu on the grounds that it had ended up as a loan to Synergy which was used to purchase Shawcell shares.

35. It will readily be seen that Milne's evidence is straightforward and in the case of Bennett she was either implicated by Milne as having knowledge by being present, or must have been aware because of her involvement regarding a relevant document or because of her relationship with Porritt and in some instances by actually being involved in the execution, such as by signing cheques, deposit slips, letters and other documents or by discussing responses, strategies or lending her presence at meetings including the investor meeting where representations were made by Milne with which she had either approved or did not disassociate from. In short- awareness through association or direct involvement or both.

36. Bennett's cross-examination cannot be judged by the length of time it has taken relative to Porritt if only because Bennett has denied knowledge or involvement in many or the acts relied upon by the State through the evidence of Milne and he has made a number of concessions in that regard, claiming that only Porritt may have been involved.

37. Bennett's cross-examination must be judged by the content of the questions and large aspects of the State case where she denies any knowledge and has obtained concessions from Milne regarding her lack of direct involvement, certainly insofar as his own knowledge goes.

38. The issue regarding whether Bennett was protracting the cross-examination of Milne again came to a head this Monday.

Despite being warned (as appears from the reasons for the order in February) about the consequences of persisting with the way she was conducting her cross-examination, by again rehashing whether the PSCGG investor money was treated as a loan in Synergy or elsewhere, she again persisted with this line. This time not by reference to the granny letter but to Milne's docket statement which she was taking effectively page by page. It is a document of over 200 paragraphs.

Moreover on two previous occasions she had asked questions around what Milne referred to as the purported swop out of Shawcell shares for the loan account and on both occasions when one would have expected a version to be put she declined stating that she will put a version later. I noted then that there appeared to be no discernable reason for not putting a version there and then.

I had also indicated to her that this issue had repeatedly come up and that in the bigger scheme of things who the debtor is has been dealt with and may not be directly relevant as this aspect of the charge related to whether the R115.3 million of PSCGG investor money, wherever it lay, was ultimately siphoned out.

39. Bennett is an astute person; as the framing of her questions bears testimony; as do the court papers which she states she had prepared, albeit in some cases with assistance (but generally not to any major degree) and to the arguments she has presented personally in open court over the last three years.

40. Furthermore Bennett did not inform the court on Monday that she was not going to comply with my ruling. It was only after the lunch adjournment when I enquired whether she was going to deal with it that she said no and that she was entitled to deal with the topics she had as a precursor to putting the version. Two things follow. Firstly that she is not ignorant of the need to deal with this aspect and that she had a week to prepare on it. Secondly that the only reason for not putting it is that she needed to foreshadow it with the questions that she had been asking during the morning.

41. As to the latter, a consideration of the questions reveals that there is no discernable link between Bennett's cross examination during the morning session and Milne's evidence regarding the ultimate outflow of the R115.3 million of investor funds, irrespective of whether it was from Synergy or any other entity. Bennett had spent the session generally trawling through the minutia of Milne's docket statement until I indicated that she had to deal with relevant issues where he had changed his version as opposed to treating it as his evidence before the court that was being canvassed de nova. I am satisfied that but for my intervention Bennett was approaching Milne's docket statement in the same way as she had done with regard the granny letter until I made my ruling of 12 February- only this time the document was many times longer.

42. I am satisfied that her explanation (for again rehashing a line of questioning in respect of which I had previously ruled) that she was questioning on issues as a precursor to putting her version is not borne out by the record.

43. Unless there is some other basis raised I must conclude that her questioning continues to be unreasonably protracted and despite claiming that she expects to finish her cross examination before the end of this month there can be no guarantee that this will be so.

44. Bennett has however raised two other grounds which I proceed to deal with.

 

LACK OF LEGAL REPRESENTATION

45. Firstly this court does not give advice on strategy once a party has elected to put a version. Nor can the court be expected to identify each and every issue that may have to be canvassed. The most obvious reason is that the court does not know the strength or weakness of the balance of the evidence which the state may present and to advise an accused in detail may result in dealing unnecessarily with some aspect or another, when in the end the State's case may collapse either because State witnesses cannot be believed or that it has not shown beyond reasonable doubt that the offences were been committed.

46. Adv van Schalkwyk SC and Adv Osborne apparently gave Bennett written advice on the rights and duties of cross- examination. While she claims that they indicated that there was a potential conflict of interest , and Bennett handed up a letter to that effect from counsel, at no stage did they claim that it precluded them from advising both accused on the rights and duties of cross-examination which included the right to remain silent and the potential consequences of doing so.

I understood from argument presented that the State had also given some resume to Bennett, but I may be mistaken. Yesterday I gave Bennett the extracts of the Constitutional Court judgment in President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 which dealt with the failure to cross-examine (para (f) of the judgment) and will provide her with the relevant section in Zeffertt's Law of Evidence.

As far as I am aware Adv van Schalkwyk with the assistance of Adv Osborne executed their task in terms of my direction previously that they advise both accused on their rights and obligations with regard to cross-examining.

47. Bennett however claims that she is at sea with what to put and not to put. On the evidence before me both Bennett and Porritt have elected not to engage legal representation. Bennett has now indicated that because another court has said that it is essential that they obtain legal representation my carrying on with the case has per se resulted in trial prejudice.

The issue of whether Bennett elected not to engage legal aid and her reason for withdrawing an application for legal assistance has yet to be presented in affidavit form. If it is then obviously it will be necessary to have Legal Aid present together with their files. I am satisfied that on the facts before me the failure to engage counsel by both accused was a deliberate election they each made.

48. Secondly the issue of whether a court can draw an inference from a failure to put a version can only be tested at the end of the case.

I am fully aware of case law dealing with whether one can draw any inference from the failure of a lay litigant to put a version. I believe earlier on I made it plain to Bennett that she may not be able to rely on this: It is not an immutable presumption but depends on what can be expected of the particular litigant before the court. In the end, whether or not it can be said that Bennett should have put any particular aspect in dispute will be based on an assessment of her intellect, reasoning capabilities and other factors as demonstrated during the course of these proceeding. This is to be weighed should a failure to put a version be relied upon by the State, bearing in mind that Bennett has told the court that it is her intention to testify.

49. I consider her faculties to be sufficiently acute and have not diminished since this case commenced.

 

RAISING DEFENCES OF PROSECUTORIAL BIAS AND EVIDENCE TAMPERING

50. Bennett can be rest assured that she has covered these issues already with Milne save to the extent that Bennett wishes to identify any other documents that she claims have been concealed aside from those which she has already dealt with.

 

OVERVIEW

51. At the current pace Bennett says that she should complete Milne's cross examination by end of May. There is however no guarantee even if Bennett has taken into account prevailing factors as she claims.

52. I am satisfied that Bennett has deliberately ignored my previous orders and rulings. While they did not necessarily have teeth they certainly have consequences and a court is entitled to draw adverse inferences from that where, as in the present case, there is no reasonable explanation.

53. In going through my papers and previous orders in preparing for this judgment I re-read the reasons which compelled me to place Porritt on terms to complete his cross- examination. It appears that it was the very same issue that precipitated an enquiry into whether Porritt was unreasonably protracting his cross­ examination; namely the issue regarding the outflow of investor money and Porritt's justification for it.

54. I have not dealt with other issues that Bennett has raised as they seek to place on record factors that may be relevant to either my recusal or to her fair trial right. Save to the extent that they have been dealt with in passing they are not matters for argument and can only be dealt with fully once Bennett actually testifies, unless prior to that these issues are contained in an application for my recusal.

 

ORDER

55. I am satisfied that Bennett continues to unreasonably protract her cross­ examination of Milne and thereby has caused and continues to cause the proceedings to be delayed unreasonably.

56. While Bennett has said that she should complete her cross-examination by the end of this month I do not wish a situation to arise where that is not so. I have formulated an order that will ensure that Bennett demonstrates a discernable commitment to not continue with delaying the proceedings.

57. In addition Milne will be put on a short rein as I believe was evident from my interventions on the last two occasions he testified. In this regard I was conscious that Bennett's question may have been directed at eliciting contradictions. She has now made it clear that she has no difficulty if Milne responds more tersely.

58. I accordingly order that :

· 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

· 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.

 

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SPILG, J

 

DATE HEARING: 21 May 2019

DATE OF ORDER AND REASONS: 23 May 2019

FOR ACCUSED 2: In person

FOR THE STATE: Adv JM Ferreira; Adv PJ Louw

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