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Van der Merwe and Another v S and Another (SS124/07) [2012] ZAWCHC 21 (15 February 2012)

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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: SS124/07

DATE: 15 FEBRUARY 2012

In the matter between:

GARY WALTER VAN DER MERWE …..................................................................................1^st Applicant

PAUL KILIAN …........................................................................................................................2^nd Applicant

and

THE STATE …..........................................................................................................................1^st Respondent

LEGAL AID BOARD SOUTH AFRICA …...........................................................................2^nd Respondent

JUDGMENT

MOSES, J

This is a matter in which Mr Gary Walter Van der Merwe is the First Applicant, Paul Kilian the Second Applicant. The State the First Respondent and the Legal Aid South Africa the Second Respondent.

By way of introduction, this matter was enrolled for trial in this Court on 25 July 2011 and it was referred to me for hearing. Both the first and the second accused, Gary Walter Van der Merwe hereinafter the first applicant and the second accused Paul Kilian hereinafter the second applicant faced multiple charges of fraud which were allegedly committed over a period from 2001 to 2003 both of them are charged on counts 1 - 3 of Investor Fraud.

These charges relate to the allegedly fraudulent sale of shares in two companies namely World On-Line Limited, a company registered in Mauritius, and Wellness International Network (Pty) Limited, a company registered in South Africa. It is alleged by the State that investors in these two companies were defrauded of millions of rand by these two accused persons.

Mr Van der Merwe is charged alone on eight further counts of fraud. Counts 4 and 5 relate to Mr Van der Merwe's personal income tax returns for the tax years 2002 and 2003. In respect of the first year it is alleged that he misrepresented his gross income by declaring an amount of R22 000 whereas he received more than R2million as gross income and for the second year that he declared an amount of R60 000 whereas he received in excess of R22million as gross income. Count 6 to 11 relate to offences allegedly committed under the Value Added Tax Act 61 of 1993.

On the first appearance both of the accused were unrepresented and submitted substantive applications for legal representation at state's expense. The first application dated 22 July 2011 and signed by Mr Van der Merwe himself with the heading "Notice of Motion Pre-Trial Application" reads as follows:

"The application is hereby made for orders in the following terms as set out in 1 up to 4 below.

1. Confirmation of the order already obtained from His Lordship Yekiso J (annexure GWM5) that should this matter be permitted to go to trial without both of the accused being legally represented, substantial injustice will result.

2. An order that from the evidence presented to the Honourable Court accused number 1 is unable to afford the required legal representation from his own resources and requires the State to appoint competent legal assistance at its expense, on the basis of equality of arms.

3. Based on the findings in 1 and 2 above an order directing that the pending criminal trial under case number SS124/2007 be stayed until such time that competent Legal Counsel has been appointed for the accused by the Legal Aid Board on the basis of equality of arms and section 35 of The Constitution.

4. An order that should the Legal Aid Board fail to appoint competent counsel of at least the same seniority as the Prosecutors in this matter within a period of 15 calendar days, the pending trial under case number SS124/2007 be struck from the roll in terms of section 342 A(3)(c) of The Criminal Procedure Act.

In support of this Pre-Trial application I place reliance on my affidavit and the annexures attached thereto."

The Second Applicant's application was less formal albeit in the form of an affidavit which is signed by himself and duly commissioned dated 23 May 2011, which contains the following heading - which essentially set out his prayers.

"1. Application to separate the trial into two trials first trial to prosecute both me and accused number 1 and the second trial just accused number 1 and/or

2. Strike matter from the Court roll until proper legal representation is acquired by accused number 2 (Paul Kilian) and/or

3. To investigate the witch hunt against me (Paul Kilian)"

Before we deal with these two applications as well as with the submissions made in that regard (which we conveniently refer to as the first proceedings) it must be pointed out at this stage that the first applicant, Mr Van der Merwe, subsequently on 11 August 2011 applied from the bar and handed into the Court an "Amended Notice of Motion Pre-Trial Application". This Notice of Motion now signed by both the applicants and dated 11 August 2011 purports to be one application on behalf of both applicants wherein the following relief is sought.

"Application is hereby made for orders in the

following terms:

1. An order that should this matter be permitted to go to trial without both the accused being legally represented, substantial injustice will result (this remains common cause).

2. An order that from the evidence presented to this Hon Court accused number 1 and 2 are unable to afford the required legal representation from their own resources, are declared and granted indigent status for the purposes of appointment of competent counsel and requires the State to appoint competent legal assistance at its expense, on the basis on equality of arms and in terms of Section 35 of The Constitution.

3. Based on the findings in 1 and 2 above an order directing that the pending criminal trial under case number SS124/2007 be stayed until such time that competent legal counsel has been appointed for the accused by the State on the basis of equality of arms, Section 35 of The Constitution and as found in terms of the route that MUST be followed in this regard in SCA judgment under case number 363/09.

4. An order that should the State fail to appoint competent legal counsel as set out in 3 above within a period of 15 calendar days, the pending trial under case number SS124/2007 be struck off the roll in terms of Section 342 A(3)(c) of The Criminal Procedure Act.

In support of this pre-trial application applicants place reliance on the attached affidavits, the annexure attached thereto and legal argument presented from the bar when the matter is argued."

I also subsequently requested the Cape Bar Council (CBC) through its chairperson to consider and explore the possibility of pro-bono counsel by its members for both the applicants. In its reply to my aforestated request in a letter dated 1 August 2011 I was informed that the Cape Bar Council unanimously resolved at its meeting held on Thursday 28^th July 2011 that it is unable to provide such pro bono assistance in the following terms, and I quote:

"During the meeting the following salient points were raised in relation to your request.

The full bench of this division had concluded that the accused were in all probability very wealthy men;
The accused had previously engaged very senior counsel who no doubt cost a considerable amount of money;
There was a suggestion that Mr Van der Merwe was the beneficiary of a trust that was in the process of selling a property for a large amount of money;
The accused were at liberty to bring an application for legal aid before you as trial judge at any stage at which they believe they were able to show that they met the requirements for legal aid;
The demands that this matter (which have been estimated to be likely to last for a year), would place on pro bono counsel was such that the Bar Council could not reasonably require any of its members to undertake such an onerous and non-paying appointment.
In the circumstances it is with regret that I must inform you that it was unanimously decided by the Bar Council that it would be inappropriate in these circumstances to attempt to prevail upon the members of the Bar to meet your request. In essence if the Legal Aid Board is of the view that the accused have access to sufficient funds to pay for their own defence it is unreasonable in our respectful view for you to request members of the Bar to act without remuneration."

I replied to the above stated letter of the CBC by letter dated

II August 2011 as follows:

"I am indebted to you and your council for considering the request extended to you on Wednesday, 27 July 2011 to ascertain whether your

council will be able and willing to provide pro bono counsel for Messrs Van der Merwe and Kilian in the above mentioned criminal matter. The contents thereof (of their letter) are noted. I shall cause copies of this letter to be handed to both Mr Van der Merwe and Mr Kilian who may or may not agree with your reasons for your decision, for their attention and consideration."

Copies of both these letters were indeed handed to the applicants respectively in open court on 11 August 2011.

Both these applications launched by the applicants on 25 July 2011 were opposed by the State on various grounds. I return to this aspect hereunder.

After all the parties had made oral submissions in respect of these applications on the 11^th of August 2011 it became apparent that Legal Aid South Africa hereinafter, the Legal Aid Board or LAB, is a necessary party to these proceedings. The LAB was subsequently joined as the second respondent on 11 August 2011 in the following terms.

"Ruling - Pursuant to the submissions made by Mr Van der Merwe on behalf of himself and Mr Kilian it has become apparent to the Court that the Legal Aid Board is indeed a necessary party to these proceedings that relate specifically to the applications filed with this Court by both Mr Van der Merwe and Mr Kilian. In the circumstances this Court will therefore direct that the Legal Aid Board be joined as a party for purposes of this application by both accused number 1 and 2.

Secondly that both Mr Van der Merwe and Mr Kilian are to file and serve their papers with the Legal Aid Board on or before 19^th August 2011.

These papers will include Mr Van der Merwe's application dated the 22^nd of July 2011 together with any annexures thereto, Mr Kilian's application which is date stamped the 23^rd of May 2011 together with any and all the five annexures annexed thereto, Mr Van der Merwe's amended Notice of Application as handed up today the 11^th of August 2011 as well as the amended annexure GWM7 which was also handed up today 11^th August 2011, as well as the two sets of Heads of Argument by the State dated 26^th July 2011.

In summary therefore the papers to be served are Mr Van der Merwe's original application with annexures, Mr Kilian's original application with annexures, Mr Van der Merwe's amended Notice of Application as well as his amended annexure GMW7 and two sets of Heads of Argument filed by the state. That must be filed and served on the Legal Aid Board by no later than 19^th August 2011. Next, the Legal Aid Board is to respond by the 9^thSeptember 2011 and consequently this matter will then be adjourned until Friday, the 9^th of September 2011."

Pursuant to this aforestated order and to ensure good order and progress in this matter I requested all the parties concerned including LAB to attend a pre-trial meeting which was scheduled for Tuesday 6^th September 2011. All the parties attended and the Court expressed its indebtedness to them for making themselves available and to attend the meeting. The representative of the LAB Mr Cloete indicated at the said pre-trial that they have indeed received a lever arch file with documents but due to the lack of certain formalities he was not sure what the purpose and/or status of these documents were.

Having explained the ruling and direction of and by this Court and the reason why the LAB was joined as a party he indicated that he now understood and will henceforth attend to the matter. Upon enquiry whether or not the LAB would be in a position to file any papers on or before 9 September 2011, which is the next hearing date, he indicated that the LAB should be in a position to do so.

To that end this Court requested the Registrar to make copies of the proceedings thus far, essentially and including Mr Van der Merwe and Mr Kilian's submissions in court, available to Mr Cloete, which was done. On Wednesday, 7 September 2011 my registrar informed me that Mr Cloete had requested the copy of the order made on the 11^th August 2011 apart from the order as set out in the transcript of proceedings on 11 August 2011. The order was extracted from the record, signed by myself and furnished to Mr Cloete on Wednesday, 7 September 2011. The matter was thereupon set down for 9 September 2011 to proceed with the LAB now joined as party to these proceedings.

On the 9^th of September 2011 Mr Calitz representing the LAB advised the court that due to the fact that he had only learnt about the joining of LAB as a respondent in this matter on 6 September 2011, the LAB required some time to consider the papers and get the necessary authority and instructions from Legal Aid South Africa. The matter stood down until Tuesday, 13 September 2011. On 13 September 2011 the following order was made by agreement amongst all the parties regarding the further conduct of the matter.

"1. A report in terms of Section 3 (B) of the Legal Aid Act 22 of 1969 is to be filed and served on or before 10 October 2011.

2. The LAB is to file and serve their papers on or before 10 October 2011 as well as the 3 (B) report in terms of the Legal Aid Act 22 of 1969.

3. Both accused are to file and serve their supplementary papers, if any, on or before 21 October 2011

4. All parties to present oral argument on the 28^th of October 2011."

The matter was adjourned however to Monday, 19^th September 2011 to afford both applicants an opportunity to provide the LAB with any additional information relevant to their applications for legal aid assistance. On the 19 September 2011 the LAB advised the court that inasmuch as the applicants had the opportunity to furnish additional relevant information, the LAB required additional information regarding the financial position of the respective applicants which the LAB considered to be very important in the determination of these applications by them. To that end he handed up two documents received and marked LAB1, a request for further financial information in respect of the first applicant, and LAB2 a similar request in respect of the second applicant. These documents also form part of the section 3(B) report which was subsequently handed in and which is dealt with hereunder.

It is appropriate to refer to LAB1 and LAB2 in full. The last four items on each of these annexures having been added by this court. The following information was requested from the first applicant in LAB1. I add that the numbering had been added to these items since in its original form it was marked with bullets which followed each other.

1. Proof of income with supporting documentation.

2. Proof of monthly rental at your place of residence including a copy of your rental agreement.

3. Details of all assets owned by you or in which you have an interest. Assets include property (movable or immoveable), investments, shares, cash money, debts due, etc of which you are the owner or beneficial owner and/or which is held by some other person or legal persons on your behalf. Please specify the value of each asset and if incumbent supply details and net value.

4. Details of all liabilities e.g. bonds and debts of whatever nature.

5. Details of any company of which you were/are a director or shareholder, or any Close Corporation of which you are a members inclusive of any franchise. Details required should include all forms of income derived from your directorship/shareholding,

6. Details of all trusts of which you were/are a beneficiary, trustee or founder. Details required include the name of the trust, your relationship to this trust, the names of the beneficiaries, trustees and founders, (where you are not such a person), the assets of the trust, when, how and from where/whom such assets were acquired, the source of funds received by the trust, the value of its assets and/or income for the past five years, the terms and details of the trust and/or a copy of the trust deed,

7. Your attention is drawn to our letter dated 18 November 2009 to which we have received no response to date. A copy is attached marked annexure A for your ease of reference. Please reply to the said letter.

I pause for a moment to refer to annexure A and to read it into the record.

I am reading from annexure A, it is annexed to LAB1. It is on the letterhead of Legal Aid South Africa, dated 18 November 2009, addressed to Mr Gary Van der Merwe, Zonnekus, 1A, Chandos Close, Woodbridge Island, Milnerton.

"Re: LEGAL AID SOUTH AFRICA AND YOURSELF.

The above matter refers.

Please provide the below requested information so that we may resolve this issue.

1. During court proceedings on the 10 September 2009 you advised the Court that you were employed to recover helicopters. Please provide us with the details of your employer and a copy of your employment contract.

2. Please advise who is funding the matters below. Also state who is representing you in these matters and at what stage these matters are:

Gary vd Merwe v NDPP & Others 8845/2008 High Court;

Gary vd Merwe & Others 5880/2008(A) High Court
v Additional Magistrate Cape Town & Others;

S v Gary vd Merwe A758/2007 Bellville

ABSA Bank Limited v Gary vd Merwe 3073/2005 High Court

ABSA Bank Limited v Gary vd Merwe 1247/2005 High Court

Diners Club SA (Pty Limited) v 9/2005 High Court;
Gary and Monique Van der Merwe.

3. Please provide us with a list of all property owned by the Eagles Trust.

4. We require proof of resignation in respect of: Tantco Global (Pty) Limited Executive Helicopters (Pty) Ltd Excel Aviation (Pty) Ltd

Formerly Aircraft Support (Pty) Ltd Madiba Air and Sea (Pty) Ltd Helicopter and Marine (Pty) Ltd Services (Pty) Ltd

Zonnekus Mansion (Pty) Ltd - also income derived from acting as manager in this entity. Summer Daze Trading (Pty) Ltd West Side Trading (Pty) Ltd Two Oceans Aviation (Pty) Ltd Helibase (Pty) Ltd

5. Bank statements for the last 3 months.

Please provide us with the requested information by no later than Friday, 20/11/2009 @ 16:00.

Yours faithfully,

RL Cloete"

I return then to LAB1.

8. Personal bank statements for the last 3 months.

9. A certified copy of your full passport with an explanation as to who funded any travelling outside the borders of South Africa and for what reason such trips were undertaken. Such to be inclusive of 28 October 2004 until present date.

10. We refer you to a document entitled Amended GWM7 contained in the latest file served on us 19/08/2011 and require the following: Why does the amounts differ from the amounts stated in the warrants - a detailed account is requested. We further bring to your attention that no proof of items 9 and 10 (Sirosa Finance and J Cameron) is attached. An explanation as to the basis of all these claims with supporting documentation.

11. Full disclosure of all banking details of any banking accounts held in the name of the first applicant, his spouse, his children, his parents and siblings.

12. Marital status and any rights and obligations pursuant thereto.

13. The names and identity numbers of all living family members including spouse, children, parents and siblings.

14. Annual tax returns submitted to SARS for the tax years ending February 2009, February 2010 and February 2011 (if it has not been directly furnished to the LAB)."

The following information was similarly requested from the second applicant in LAB2.

"Proof of income with supporting documentation, proof of monthly rental at your place of residence including copy of your rental agreement, details of all assets owned by you or in which you have an interest. Assets include property (moveable or immovable), investments, shares, cash money, debts due, etc of which you are the owner or beneficial owner and/or which is held by some other person or legal persons on your behalf. Please specify the value of each asset and if incumbent supply details and net value.

Details of all liabilities example bonds and debts of whatever nature.

Details of any company of which you were/are a director or shareholder or any close corporation of which you are a member inclusive of any franchise.

Details required should include all forms of income derived from your directorship or shareholding.

Details of all trusts of which you were/are beneficiary, trustee or founder. Details required include the name of the trust, your relationship to the trust, the names of the beneficiaries, trustees and founders (where you are not such a person), the assets of the trust, when how and from where/whom such assets were acquired, the source of funds received by the trust, the value of its assets and/or income for the past five years, the terms and details of the trust and/or copy of the trust deed.

Your attention is drawn to a letter dated 18 November 2009 to which we have received no response to date. A copy is annexed marked annexure A for your ease of reference. Please reply to the said letter.

Full disclosure and all banking details of any banking accounts held in the name of the second applicant, his spouse, his children, his parents and siblings.

His personal bank statements for the last 3 months.

A certified copy of your full passport with an explanation as to who funded any travelling outside the borders of South Africa and for what reason such trips were undertaken. Such to be inclusive of 28 October 2004 until present date.

A copy of statement for school fees dated 2010 and 2011, payment receipt in respect thereof.

Marital status and any rights and obligations pursuant thereto.

The names and identity numbers of all living family members including spouse, children, parents and siblings.

Annual tax returns submitted to SARS for the tax years ending February 2009, February 2011 and February 2011 (if not already furnished to the LAB).

The matter was thereupon adjourned until Wednesday, 21 September 2011 to afford the applicants the opportunity to reply to these requests for information by the LAB, and again to 28 September 2011.

On 28 September 2011 Mr Calitz who appeared for the LAB informed this court that there was no full compliance by both these applicants to these requests. After having heard Mr Calitz and the applicants the court adjourned the matter to 4 October 2011.

With regards to the request directed at the first applicant, Mr Van der Merwe, the LAB reported back to this court in a document dated 3 October 2011, handed in and received as LAB4 as follows.

"Second respondent refers to the request for further financial information dated 12 September 2011 and the request compliance in the following respects.

1. Proof of income with supporting documentation:

1.1 First applicant indicates that he sub

contracts but has not provided any details of how regularly he is so employed, nor provided any documentary proof.

2. Proof of monthly rental at your place of residence including a copy of your rental agreement:

2.1 Complied.

3. Details of all assets owned by you or in which you have an interest, assets include property (moveable or immoveable), investments, shares, cash money, debts due, etc of which you are the owner or beneficial owner and/or which is held by some other person or legal persons on your behalf. Please specify the value of each asset and if incumbent supply details and net value:

2009 tax return indicates an R15million interest in a private company, no details of such interest was received;

3.2. No tax return submitted for 2011;

3.3. No indication of any insurance policies and premiums paid (existing, paid up and surrendered policies)

4. Details of all liabilities e.g. bonds and debts of what ever nature:

4.1. Statement of school fees for 2010 and 2011 in respect of Richard Gary Van der Merwe;

4.2. Car finance statements;

4.3. How was the matter under case number 5880/2008 funded, as law reports indicate that the applicant had a SC on record.

5 Details of any company of which you are a director or shareholder or any Close corporation of which you are a member. Details required should include all forms of income derived from your directorship/shareholding:

5.1. No details received to date;

5.2. How do Zonnekus Mansions (Pty) Ltd derive an income to service bond and honour settlement agreement reached under case number 5662/2011.

6. Details of all trusts of which you are a beneficiary, trustee or founder. Details required include the name of the trust, your relationship to the trust and names of the beneficiaries, trustees and founders. Where you are not such a person the assets of the trust, when and how and from where/whom such assets were acquired, the source of funds received by the trust, the value of its assets and or income for the past five years, the terms and details of the trust and/or a copy of the trust deed:

6.1 The trust deed of Eagles Trust received, no further compliance in terms of point 6.

7. Your attention is drawn to our letter dated 18 November 2009 to which we have received no response to date. A copy is attached marked
annexure A for your ease of reference. Please reply to the said letter. We interpose to point out that annexure A has already been read into the record.

8. Bank statements for the last 3 months. First applicant indicates that he has no bank accounts. In respect of such statement the following is requested:

How is monies for sub-contracting paid over to applicant; How was a personal loan of Sirosa Finance and J Cameron paid over to applicant;

How does applicant plan to service these loans; Bank statements for applicant's mother and step-father outstanding.

9. A certified copy of your full passport with an explanation as to who funded any travelling outside the borders of South Africa and for what reason such trips were undertaken.

10. We refer you to a document titled Amended GWM7 contained in the letters file served on us 19/08/201 1 and require the following - why does the amount differ from the amounts stated in the warrants? A detailed account is requested. We further bring to your attention that no proof of items 9 and 10 (Sirosa Finance and J Cameron) is attached. An explanation as to the basis of all these claims with supporting documentation.

Additional information requested.

11. Copy of passport for spouse and siblings for the last 36 months.

12. Permission/consent to access records at Home Affairs.

13. Permission/consent to perform credit searches on self, spouse and parents.

14. Details of all business in which spouse, children, parents have an interest.

15. Financial statements of these businesses over a five year period.

16. Details of all trusts in which spouse/children/parents have an interest.

17. Financial statements of these trusts over a five year period.

18. Tax returns for businesses and trusts over a five year period.

19. Bank statements for businesses and trusts over a five year period.

20. Credit statements for businesses and trusts over a five year period.

21. Details of all assets of businesses and trusts over a five period with all changes i.e. assets and disposals."

With regards to the request to the second applicant, Mr Paul Kilian, LAB reported back to this in a document marked LAB3 (the date thereof is 12 September 2011 which is self-evidently a typographical error) as follows.

"The second respondent refers to the request for further financial information dated 12 September 2011 and a request for compliance in the following respects.

1. Proof of income with supporting documentation:

1.1. No compliance;

1.2. Proof of income in respect of Pony Branch B&B is requested;

1.3. Tax returns for 2009 and 2010 reflect income of R45 000 and R70 000 respectively.No supporting documentation supplied;

1.4 Applicant indicates that he resigned as director of company, no proof of transfer of shares or membership interest.

2. Proof of monthly rental at your place of residence including a copy of your rental agreement:

2.1 Complied.

3. Details of all assets owned by you or in which you have an interest. Assets include property (moveable or immoveable), investments, shares, cash money, debt due, etc of which you are the owner or beneficial owner and/or which is held by some other person or legal persons on your behalf please specify the value of each asset and if incumbent supply details and net value:

3.1 No proof of vehicles as previously indicated.

4. Details of all liabilities e.g. bond and debts of what ever nature:

4.1 No proof of personal liability.

5. Details of any company of which you are a director or shareholder or any Close Corporation of which you are a member. Details required should include all forms of income derived from your directorship, shareholding:

5.1 No proof of resignation and/or transfer of shares as per letter dated 30/06/2011 received from second applicant.

6. Details of all trusts of which you are a beneficiary, trustee or founder. Details required include the name of the trust, your
relationship to this trust, the names of the beneficiaries, trustees and founders where you are not such a person the assets of the trust, when how and from where/whom such assets were acquired, the source of the funds received by the trust, the value of its assets
and the income for the past five years, the terms and details of the trust and a copy of the trust deed:

6.1. Trust deeds of all Kilian Family Trust and Pony Ranch Trust supplied;

6.2. Remaining information outstanding.

7. Bank statements for the last 3 months:

7.1 Bank statement in regard to ABSA 1 account only supplied for period 11/07/2011 to 1/08/2011. Applicant is required to submit statements for a 3 month period.

8. A certified copy of your full passport with explanation as to who funded any travelling outside the borders of South Africa and for what reason such trips were undertaken:

8.1 Complied.

9. A copy of statements for school fees dated 2010 and 2011, receipts of payment received in respect thereof:

9.1 Complied. Additional information requested.

10. Copy of passports for ex-spouse and siblings for the last 36 months.

11. Permission/consent to access records at Home Affairs.

12. Permission/consent to perform credit searches on self and ex-spouse.

13. Details of all businesses in which ex-spouse and children have an interest.

14. Financial statements of these businesses over a five year period.

15. Details of all trusts in which ex-spouse and children have an interest.

16. Financial statements of these trusts over a five year period.

17. Tax returns for businesses and trusts over a five year period.

18. Bank statements for businesses and trusts over a five year period.

19. Credit statements for businesses and trusts over a five year period.

20. Details of all assets of businesses and trusts over a five year period with all changes i.e. assets and disposals."

The matter was subsequently postponed to 21 October 2011 since the applicants had to file their respective supplementary affidavits, if any, on that date and it afforded both of them additional time to respond to the outstanding queries and requests by the LAB.

The LAB filed and served their answering affidavit marked LAB5 on 10 October 2011 in accordance with the above stated order dated 13 September 2011. The second applicant handed up his supplementary affidavit on the 21^st of October 2011. The first applicant did not file nor served any supplementary papers on 21 October 2011 despite the aforementioned court order which was by agreement amongst all the parties.

The matter stood down until Monday, 24 October 2011 to enable the first applicant to file and serve his supplementary affidavit, which he did. It was decided that the report in terms 5 of section 3 (B) of the Legal Aid Act 22 of 1969 be filed with this court on 28 October 2011 to enable the LAB to incorporate any additional information including the supplementary affidavits of the applicants, if any, into the said report. The applicants were also given a further opportunity to file any additional information with the LAB, if any, on or before 26 October 2011. The matter was thereupon postponed until Monday, 31 October 2011 for argument by the respective parties regarding the application by the applicants. The Section 3 (B) report was subsequently duly filed by the LAB on 28 October 2011.

On the 31^st of October 2011 when the proceedings resumed the first applicant asked leave to hand in a bundle of documents in a lever arch file containing in excess of 470 pages. There being no objection by any of the other parties this bundle of documents was handed in and received as exhibit 2. The matter stood down until quarter past two in the afternoon to enable the court to peruse the documents as well as the written submissions of the respective parties handed to

25 the court registrar just before the resumption of the /DS

proceedings. When the proceedings resumed after the lunch break at quarter past two, Mr Van der Merwe, the first applicant herein, came prepared complete with a substantive application for my recusal with which Mr Kilian, the second applicant, joined in.

This application consisted of voluminous pages and the matter was perforce postponed until the next day 1 November 2011 to enable the court and the other parties, the State and the LAB to peruse and consider the applicants' application for my recusal. This application was heard the next day and after careful consideration of all the issues raised and submissions advanced, it was dismissed. The parties thereafter proceeded with their submissions respectively regarding the main application namely the applicants' application for legal representation at State's expense. This is conveniently referred to as the second hearing. I deal with this aspect more fully hereunder.

Submissions continued on the 2^nd November 2011, Thursday the 3^rd November 2011, Tuesday the 8^th November 2011 until Wednesday the 9^th of November 2011. Thereafter the court, including all the parties conducted an inspection in loco in respect of the properties that relate firstly to Mr Paul Kilian, the second applicant, on Friday 11 November 2011 and secondly to the properties that relate to Mr Van der Merwe which was conducted on Monday 14 November 2011. The minute was prepared and agreed to in respect of each of the inspections and handed in; in respect of the second applicant by agreement as exhibit 5 and in respect of the first applicant also by agreement as exhibit 6.

The court thereafter advised the parties that witnesses would be subpoenaed by the court to testify and assist the court with its investigation and enquiry into the circumstances of both the applicants more particularly, their respective financial positions. The State assisted the court in the process of issuing subpoenas in respect of the witnesses the court wanted to testify. Six witnesses were identified in respect of Mr Kilian, the second applicant. They were subpoenaed to testify first for the week commencing 29 November 2011. All of them attended the court and 5 of them testified. I shall return to their evidence in due course.

Eight witnesses had been identified in respect of the first applicant, Mr Van der Merwe, all of whom were duly subpoenaed to attend this court with effect from 6 December 2011 to give evidence. All of them except one Mr Maritz also attended to the court and testified between the 6^th to the 9^th of December 2011. I shall similarly return to their respective evidence.

The court during court recess on 12 December 2011, the term having ended on the 9^th of December 2011, after all the evidence was lead, advised both applicants in respect of their rights to testify and to call witnesses as well as the rights of the other parties to cross-examine them and their respective witnesses should they elect to testify and call witnesses. Both of them indicated that they understood their rights in this regard. The first applicant indicated to the court that he would not testify and not call witnesses but he would reserve his right to alter his position once he had studied the record of the proceedings thus far. The first applicant has indicated to the Court that he had at own cost ordered and mandated a transcript of the whole proceedings.

The second applicant indicated that he had already told the Court everything and elected not to testify and not to call witnesses. Mr Budlender, who appeared together with Mr Calitz for LAB indicated that they do not intend to call any witnesses, so did Mr Damerell on behalf of the State. All the parties indicated they need time to consider the evidence of the respective witnesses and to prepare the arguments and submissions in respect of this oral evidence only. It was in this context that the matter was postponed to the 1^st day of the new term starting 23 January 2012 for written and oral submissions.

The first applicant was directed to inform the registrar of this Court and the other parties on or before 16 January 2012 whether or not he is going to testify in these proceedings. The parties were also directed to serve and file their heads of argument on or before 18 January 2012. The first applicant did not inform the other parties nor my registrar on or before 16 January 2012 whether he has elected to testify or not. He also did not file any heads of argument on 18 January 2012 as directed. It was only when they were telephonically contacted on 18 January 2012 by this Court's registrar on the instructions of the Court that (a) Mr Kilian, the second respondent sent via electronic mail a one page document containing four sentences, as his "heads of argument", and (b) Mr van der Merwe, the first applicant, indicated to my registrar that he had elected to testify.

After being telephonically informed about these developments neither the LAB nor the State filed any heads of argument, there being no purpose to file same given the fact that the first applicant had now indicated that he would testify and he still had to testify. The oral arguments which were scheduled for 23 January 2012, as directed by this Court could therefore not proceed on that day, since the evidence of the first applicant would still have to be heard.

On the 23^rd of January 2012 Mr Damerell, the State advocate, advised the Court that the documents relating to the various companies in which the first applicant was involved according to the CIPRO searches had been obtained from the Registrar of Companies and Close Corporations under cover of affidavits in terms of Section 5 of the Companies Act 61 of 1972 read with Section 234 of the Criminal Procedure Act 51 of 1977, as amended, which he wished to hand into Court. There being no objection by any of the parties, these documents, covering two lever arch files, were handed in as a bundle exhibit marked EXHIBIT 9.

I turn briefly to the contents of EXHIBIT 9 hereunder. Thereafter the first applicant came to the witness stand to testify. His evidence was finalised the next day, 24 January 2012. He did not wish to call any witnesses. Thereafter the matter was postponed to 9 February 2012 for oral and written submissions. After all the parties had addressed the Court the matter was adjourned until 15 February 2012 to enable the Court to peruse and study the contents of EXHIBIT 9 and for judgment. This historical overview then constitutes the genesis of this application and how it has developed and unfolded until this day.

We now turn to the proceedings with effect from 31 October 2011 - the second proceedings - and start with a summary of the first applicant's submissions.

Mr van der Merwe argued that the Legal Aid Board is attempting to hoodwink the Court by using an old Section 3B report to draft the new report without any consideration of any of the new information, and documentation he submitted in support of his new application. He referred the Court to the provisions of the Legal Aid Act as amended, as well as the Legal Aid Guide. His submission was that the Act made provision for two objectives and those are that the Board shall render legal aid to indigent persons and provide legal representation at State expense as contemplated in the Constitution. His submission in essence was that the Legal Aid Board, had not followed the correct procedures as prescribed in the Act, and he submitted that the Legal Aid Board, to quote him, "were on a frolic of their own" by not following the prescripts of the Act and the delegation of their powers.

With regard to the first objective as prescribed by the Act, the indigent persons, he referred the Court to Chapter 11 of the

Criminal Procedure Act and the definition of indigent persons. He submitted that the Legal Board have ignored the facts put before them and do not wish to deal with the true state of affairs. He submitted further that they have not put all the factors and information before the Court, and have not considered or dealt with any aspect that the criminal trial may face, and particularly the issue of the delay and the length and complexity of the upcoming trial. He submitted to the Court that the cost of conducting the trial with senior counsel, junior counsel and an attorney would cost according to his calculations an amount of approximately R250million over a 12 year period.

He argued further that there is no question about his success on the question of substantial injustice that would occur should he be forced to continue the trial on his own and without legal representation and that when one employs the parity of arms principle they (first and second applicants') would be at a substantial disadvantage. With regard to the second leg of the test, which is the means test, and where investigations are conducted to determine whether the applicants had the necessary financial means to afford their own legal representation, he argued that the three steps to be followed had not been done and that therefore the LAB did not follow the prescribed procedures. He should be given legal aid because he is unemployed and has no income and the Legal Aid Board simply used the old report. He accused the LAB of being stubborn and nonchalant. We will deal more fully with these aspects in due course.

The main question posed to the Court, according to him, is to make certain that the accused receive a fair trial and argued that our courts demand no less than that. To order him to pay for his own legal representation without access to funds for that purpose would be unfair and would place him at a serious disadvantage, as he is facing serious charges. He requested the Court to find that the LAB should apply just administrative action.

He also submitted that the Court should make an order in terms of Section 342A of the Criminal Procedure Act, in that he and Mr Kilian have appeared in court 46 times and he submitted that 80% of those appearances have been due to the problems with the State and the Legal Aid Board. He therefore moved for the Court to make an order in terms of the aforementioned section, that is Section 342A of the Criminal Procedure Act 1977, and to strike the matter from the court roll.

Mr van der Merwe handed up a bundle of documents which we have referred to, the contents whereof were also used as a means of showing the Court how he has complied with the requests for documentation from the Legal Aid Board, and also showing that he is no longer able to afford to pay for his own legal representation. He argued that his liabilities far outweigh his assets and that he is currently in debt to the tune of R81million. He further submitted that his liabilities are not disputed by the LAB.

Referring to the Eagle Trust, he submitted and explained how the trust owned shares in the company, Zonnekus Mansions. He argued that the LAB is "clutching" at the properties owned by Zonnekus Mansions and that all the properties do not have any value and are encumbered with liabilities. He asked that the Court should find that he is not in a position to pay for his own legal representation.

In closing he submitted that there were no means whatsoever to afford him to pay for private legal representation and that should any funds accrue to him from the sale of properties then these funds would be seized by SARS as they are preferential creditors. Mr van der Merwe's concluding submissions were therefore that if the Court finds in favour of the argument by the LAB, that they (him and the second applicant) do not have the means available to pay for private legal representation, which would result in a substantial injustice. He described himself as falling into the category and definition of an indigent person and therefore requested the Court to grant a stay of prosecution until legal representation has been provided at State expense. If no legal representation be granted within 15 days that the matter should be struck. He submitted that the Court should adopt a robust approach as they had already spent in excess of 33 times just for the legal aid argument.

We now proceed with the summary of the argument and submissions made by Mr Paul Kilian, the second applicant. Mr Kilian submitted that accused 1, that is Mr van der Merwe, who is also the first applicant, had said more than enough regarding their application for legal aid and further that he concurred with the submissions made by Mr van der Merwe. He reiterated that they had appeared in court for the sixth time which had been a sentence in itself. He also submitted that they had been tried in the media, he has been cut off from future business endeavours by State intervention, and also argued that the Legal Aid Board has made no attempt to reinvestigate his changed circumstances. He argued that all documentation has been submitted to the LAB, but that they chose to ignore this information and that all their current information is old and irrelevant. He submitted that no consideration has been given to the length and cost of the trial and that he no longer has any assets or means to afford his own private legal representation.

With regards to the properties he owned he submitted that he is in arrears with bond repayments on all these properties and he is unable to sell any of them. He submitted that he now earns an average income of between R25 000 and R30 000 per month but only during high season. He submitted that it is meaningless to say that he has a net asset surplus of R7.7million because he cannot get the cash out and he is in arrears and he cannot sell the properties. In conclusion his request to the Court was the same as that of Mr van der Merwe.

The Legal Aid Board, in reply to these arguments submitted by both Mr van der Merwe and Mr Kilian, argued that they, or referring to the Legal Aid board, had a duty to ensure that public money is used properly and responsibly. In order to achieve this there were two methods. The first method is with the Legal Aid Act and the Legal Aid Guide. They submitted that the Board has complied with the provisions of the Act and the Guide and that the section 3(b) reports submitted was an excellent report. The report, according to the LAB, was drawn up based on information received and that consideration was given to every aspect of the information that was supplied by the applicants. The concession was made that the two applicants do need legal representation but that they do have assets and funds available to afford their own legal representation. The argument is that the applicants have made disclosures with regards to the properties they own and the assets at their disposal, but that the LAB however are of the opinion that this disclosure has not been proper and full disclosure. They argued that until the Court knows what the substance and nature of these assets are the Court cannot make a decision. They refer to the Supreme Court of Appeal judgment, case number 363/2009, the matter between the Legal Aid Board, who was the appellant, and the State as first respondent, Gary Patrick Porritt as second respondent and Susan Hillary Tennet as third respondent. The neutral citation is the LAB v the State (363/09) (2010) ZASCA 112 (21 September 2010) and this case will be referred to as the SCA judgment, or the Porrit case interchangeably.

They referred to this case and argued that the Section 3(b) enquiry is designed to enable the Court to determine whether the accused require legal representation at State expense and the court must take into account the personal circumstances of the person concerned. If the Court is left in the dark as to a person's personal circumstances it can hardly properly undertake the postulated enquiry. The Legal Aid Board has submitted that the Court is still in the dark regarding the personal circumstances of both the applicants before Court. They argued that the crucial question before the Court was whether the information before Court is sufficient to take into account personal circumstances and to conclude that they require legal representation at State's expense.

The Legal Aid Board then focused their argument on each of the applicants separately. Regarding the first applicant, Mr van der Merwe, they submitted that he had still not provided them with names and details of certain persons and that this was a fundamental failure in the case of the first applicant due to the argument that the Eagle Trust is positively vested with funds. They focused on the trust as a whole and who the beneficiaries of the trust are and what the trust owns. They argued that two groups of people are essential to obtain information from. The two groups are the trustees of the Eagle Trust and the directors of Zonnekus Mansions. They submitted that there are certain issues with the Eagle Trust and that the first applicant is a beneficiary of the trust. They also submitted that information regarding Zonnekus Mansions must be investigated.

One of the issues they raised at the time is that the property on Zonnekus Mansions was recently advertised for sale for an amount of R39million, and all value in Zonnekus Mansions accrues to the Eagle Trust of which the first applicant is (at that stage) a beneficiary. They further argued that the first applicant has deliberately impoverished himself because on the one hand he contradicts himself and therefore makes it impossible for the court to determine what the truth is and what his true financial status is. They further referred to his own admission that he had an empire. They questioned what happened to all the assets, where did all the money go. They argued that the first applicant had been given ample opportunity to explain his personal circumstances and that he had failed to assist the Court with this enquiry. They argued that this must be fatal to his request for legal assistance at State's expense and the Court must therefore decline to issue the directive contemplated by Section 3(d) of the Act. The Legal Aid Board also pointed out various other inconsistencies and what they argued were failures by the first applicant to make full disclosure. They provided in argument basically five reasons why the Court remained at that stage at the mercy of the SCA case regarding the personal circumstances of the first applicant. They submitted that the Court cannot possibly know the truth, and therefore the first applicant does not pass the first hurdle and that the court is therefore bound by the decision of the full bench, that is to decline to order or direct the Legal Aid Board to provide the first applicant legal representation at State's expense.

The submissions by the Legal Aid Board regarding the second applicant were amongst others that he is vested with assets of R7.7million. He declared this is in his application for Legal Aid on the 20th of May 2011. They argued that he made assertions but he has not provided any concrete evidence, he has not provided satisfactory answers and that he chooses what he wishes to disclose. Therefore he has not made full disclosure. They argued that in the circumstances the Court cannot objectively make a decision based on his disclosures and submissions.

They submitted furthermore with regards to the position of the second applicant that he was and remains a trustee and beneficiary of the trusts, referring to the Paul Kilian Family Trust, and the Pony Ranch Trust, and that the trusts have a net asset value of R8million. They argued that as the matter presently stood, that is before the evidence was led in this Court, his position has not changed and it is not possible for the Court to conclude that there is absolute clarity to his personal circumstances or to conclude that it has been shown that he is not able to make a substantial contribution towards the cost of legal representation.

In concluding their argument, the Legal Aid Board submitted that the court had three options available. The first option was that that Court cannot find that they, ie the applicants, fully disclosed their personal circumstances, and that they must therefore fail on that point. The second option is for the Court to call witnesses to make an objective and a proper evaluation on the evidence and thereafter to make a determination with regards to the question of whether or not they are entitled to legal representation at State's expense. The third option is for the court to decline the Section 3(b) order because of the contradictions of the evidence tendered at that stage, by and on behalf of both applicants, more particularly in that the first applicant has shown that he was trying to divest himself of assets. They argued that both the applicants have not made full disclosure.

The State is represented in these proceedings by prosecuting counsel, Mr Damerell and Mr Bunguzana. They also made submissions regarding the enquiry. These related at the time to comments on the complexities of the trial by both these applicants. The State argued that the charges must be split up into three groups and that the argument raised that there are more than 900 State witnesses is not correct. They argued that without going into the merits of the case, and without downgrading their own case, the matter is not as complex as made out by the accused and estimated that the trial should run for approximately three months.

The State also referred to the fact that both accused, referring to the applicants before the Court, knew what the substance of the case was against them and with modern technology they could consult with witnesses via phone or electronic mail and would not suffer any trial unfairness. The State submitted that both accused, ie the applicants before Court would receive a fair trial.

The first applicant, Mr van der Merwe, in reply to the oral arguments and submissions from the State and the Legal Aid Board, submitted that it was fanciful how the State had downplayed the seriousness of the charges against them and the complexity of the case. He reiterated his argument that they are still lay persons, referring to himself and the second applicant, and remain unrepresented.

With regards to the submissions by and on behalf of the Legal Aid Board he replied that they rely on what was found in the full bench decision and the SCA decision. He then dealt once again with the five points raised by the Legal Aid Board and explained to the Court that there surely must be a limit on where full disclosure must end and the limit on what he has to disclose to the State.

He argued that the full bench did not make a correct finding as they did not consider the nature of the assets. He argued that he had gone from hero to zero, and that in reality he simply could not afford legal representation. He stated that in the last few years he has had no income and he lives off love and charity. He asked the Court to be realistic and reiterated the fact that the assets referred to by the LAB do not provide him with funds to pay for legal representation.

The second applicant, Mr Kilian, in reply stated that he was not aware that he was a beneficiary of the trust and genuinely made a mistake. He did not want to hoodwink the Court. He submitted further that he has been financially ruined and cannot even afford to settle all the liabilities he has incurred over the years. He stated that he cannot dispose of the assets and even if the assets were sold consideration must be given to the other beneficiaries of the trust. He once again asked the court to find that he simply cannot afford legal representation and requested that the Court grants them, referring to himself and the first applicant, legal aid at State's expense.

Once all the parties had concluded their oral arguments and submissions to the Court and after careful consideration the Court advised the parties that it wished to conduct an inspection in loco in respect of all the properties owned by the various trusts and of which both the applicants were trustees and beneficiaries respectively. As stated before the inspection took place on the 9th of November 2011 where the properties of Mr Kilian, the second applicant, were viewed by the Court. A minute from this inspection in loco was prepared by the Legal Aid Board and handed in to the Court by agreement between the parties and is marked EXHIBIT 5. Exhibit 5 reads as follows:

Minute of inspection in loco in respect of Mr Kilian:

Minutes of the inspection in loco of the under stated properties done on 9 November 2011.

It noted those in attandance as myself, presiding judge, with the assessor Professor Zimbler, Ms J Ely, the registrar, Mr G van der Merwe, the first applicant, Mr P Kilian the second applicant, Advocate D Damerall for the State, Advocate D Bungunzana for the State, Advocate M Calitz for Legal Aid South Africa, Ms S Kuun for Legal Aid South Africa.

Properties inspected

52 Eli Hodginson Avenue, Camps Bay;

It made the following recordings in respect of this property:

1. Permanent structure consisting of three levels situated in an upmarket residential area;

2. It is in part used as a residence, and in part as a bed and breakfast of which the rates vary between R500 to R1 200 per night. It is styled as Villa Romantiqua.

3. It is about 400 square metres, includes as swimming pool, lock-up garage and garden;

4. The first level

4.1. This level includes the personal living area of Mr Kilian;

4.2. This level consists of a large open plan kitchen and lounge and three bedrooms;

4.3. All the rooms are furnished which includes current appliances, ie flat screen TV;

4.4. All rooms exit on balcony with view of Camps Bay. Second level

4.5. This level consists of two bedrooms as part of B and B;

4.6. two of these bedrooms are en suite and one has
kitchenette.

4.7. Rooms are luxuriously furnished with modern day appliances.

4.8. The office of the B&B is also on this level.

4.9. All rooms exit on balcony. Third level

4.10. The number of bedrooms on this level is three.

4.11. This level further consists of a braai area, a pool room, kitchen and breakfast area.

4.12. The number of on suite rooms is two and one separate room with a bathroom.

4.13. Rooms are luxuriously furnished with modern day appliances.

The second property is situated on 21 Central Drive, Camps Bay. Firstly it records it is a permanent structure, it is marked 5 in this document.

5. Permanent structure consisting of two levels with cascading water feature situated in an upmarket residential area.

6. This property consists of three units.

7. The exterior design of the property is ultra modern.

8. The interior was not viewed.

9. Two of the units have been sold for R9.2million and R6.5million respectively.

10. The remaining unit consisting of two levels is currently leased at a monthly rental of plus minus R32 000.

11. It is on sale for between R18million to R12million, it is bonded for R8.5million to ABSA Bank.

12. The property is bonded to ABSA Bank for between R8.5million en RIOmillion.

The next property is situated at 15 Fairways Avenue Camps Bay.

It is recorded and described as follows:

13. Permanent structure consisting of two levels situated in an upmarket residential area;

14. This property is about 200 metres from the Camps Bay beach.

15. It is run as a B&B, referring to a bed and breakfast, and the rate is R890 per night.

16. Consisting of ten en suite bedrooms, kitchen, lounge, outside entertainment area and pool.

17. The interior furnishings are modern.

18. It is on sale for between R12million and R7.9million.

The next property situated and described as number 5 Slayskin Road, Hout Bay.

19. Permanent structure consisting of three levels situated in an upmarket residential area.

20. The property was only viewed from the exterior and a double garage was further noted.

21. The property is currently leased to a third party.

22. The monthly rental is R18 000.

The next property viewed was described as Farm 728 in Paarl (the Pony Ranch). It is recorded and described as follows:-

23. This property is a smallholding.

24. It's 5000 square metres in size.

25. It has a main dwelling, three separate living units and a barn.

26. The dwelling and three units are leased at R9 000, R2 500 and R2 200 (x 2 respectively). That concludes EXHIBIT 5.

The Court then indicated that it wanted to continue with an inspection of the properties of Mr van der Merwe, the first applicant and proceeded on this inspection on 16 November 2011. The inspection was concluded and the minute of the inspection was also compiled and handed in by agreement as EXHIBIT 6.

The minute of the inspection in loco of the understated properties, done on 14 November 2011 reads as follows;

In attendance Moses, AJ, Mr S Zimbler, assessor Ms J Eli registrar, Mr G van der Merwe, first applicant, Mr P Kilian second applicant, Advocate M Calitz for Legal Aid South Africa, Ms S Kuun for Legal Aid South Africa.

Properties inspected first, erf 13421, Somerset West.

1. This is an erf situated in upmarket Dennegeur Estate complex, Somerset West.

2. It is 1 000 square metres in size.

3. Building plans have been approved.

4. Building commenced but ceased in the early stages with the structures become dilapidated and the property is for sale for R1 million negotiable. It was previously auctioned but no offers were received.

The second property is referred to and described as Zonnekus, Woodbridge Island, Milnerton:

5. Permanent structure consisting of two levels situated in an upmarket residential area.

6. This property is of historical value situated on Woodbridge Island, Milnerton.

7. It is on the beach front and exits on the beach.

8. From the exterior the following observations are made:

8.1. It is 7 700square metres in size;

8.2. It has a swimming pool and Jacuzzi;

8.3. Four garages with no doors of which three are double garages;

8.4. Apart from the outbuildings the dwelling is divided into the main dwelling and a cottage;

8.5. The grounds are maintained in an immaculate state.

9. First applicant refused access to the interior of the buildings to the parties, with the exception of the presiding judge. No inspection in respect of the interior was conducted.

10. First applicant informed the court that the interior of the property consists of inter alia:

10.1. Six bedrooms, one has an en suite bathroom.

10.2. Two separate bathrooms

10.3. Lounge, dining room, study, laundry, kitchen, playroom, cellar and

10.4. Office.

11.1. First applicant informs the Court further that the property on occasion is hired for events by third parties.

12. The property is currently for sale at R39million.

The next properties referred to are described as 8, 9 and 10 Burmeister Street, Milnerton.

13. These three properties are adjacent to each other and held under separate deeds.

14. All three these properties were viewed from the exterior only and are 1 000 square metres in size.

15. All three properties' backyard border on Marine Drive, Milnerton, they are on the market for a combined sum of R5.5million negotiable.

No 8 Burmeister Street (Erf 902)

16. Permanent single story dwelling.

17. It has a swimming pool and double garage.

18. It is uninhabited and is in a state of disrepair. No 9 Burmeister Street (Erf 901)

19. Permanent single storey dwelling.

20. It is divided into a cottage (No 9A) and the main dwelling.

21. The cottage is inhabited but the main dwelling is not.

22. This property is in the process of being renovated, painting and paving being repaired was observed.

Burmeister Street (Erf 8666)

23. Permanent single storey dwelling.

24. The property consists of a main dwelling and a cottage.

25. It is in a good state.

26. It is leased at R12 000 per month.

That concludes the minute of the inspection in loco in respect of the properties referring to Mr van der Merwe as displayed on EXHIBIT 6.

Once this process had been completed the Court then notified the parties that it intends to call witnesses and the State offered it assistance in this regard to make sure that the

necessary subpoenas are issued with reasonable notice to the witnesses and parties. The case was postponed for the purpose of monitoring this process and the progress of the subpoenas. On resumption of the proceedings the parties indicated that 14 witnesses had been subpoenaed, and the case was then postponed until 29 November for the purpose of hearing the evidence of those witnesses who had been subpoenaed.

We now proceed with the summary of the evidence of the witnesses who had testified. We first start with the witnesses in respect of and regarding the first applicant, Mr van der Merwe. The eight witnesses that have been subpoenaed by the Court consist of the auditors and accountants and former directors and current directors of the various entities that Mr van der Merwe has been identified as being involved in, as well as the trustees of the Eagle Trust. Their evidence was heard between 6 December 2011 and 12 December 2011. The first witness was Mr Jan Louis Raath, who testified that he is a chartered accountant, and has been in practice since 2000. He was the appointed auditor for the company Executive Helicopters (Pty) Ltd, Helicopter and Marine Services (Pty) Limited and Helibase (Pty) Limited. He explained that he took over the audits of the above companies from a Mr Koch and then he sold his practice in 2005 whereupon all the files and information on the audits were handed over to Mr Maritz. He was therefore the auditor from 2002 until 2005, when he handed over this information and documents to Mr Maritz. He could not recount or recall any of the figures and entities and could not recall when the company started and what their current financial status was. In essence he could not recall much about any of the three mentioned companies. He could not remember whether Mr van der Merwe was a director or not and could not recall or recount whether Mr van der Merwe had received or was entitled to any benefits from the mentioned entities.

The second witness called in respect of this enquiry was Mr Caine Stadler who indicated that he is a bookkeeper and has been in business for 15 years. He conducts bookkeeping services for clients and he prepares the pre-audit documents in the form of detailed ledgers and the trial balance for the auditors. He tendered documents to the court which consisted of trial balance records from February 2011 as well as copies of the detailed ledger entries for the same period. These documents were handed in and marked EXHIBIT 4.1 to 4.7 indicating the respective years. These documents that were handed in are the ledger entries and trial balance records in respect of the company called Zonnekus Mansions (Pty) Limited referred to hereinafter as ZM or Zonnekus Mansions interchangeably. The documents were prepared by himself and the information collated and contained in the documents were obtained from bank statements and invoices and received from the clients, ie from Mr van der Merwe, the first applicant.

In answering questions from the Court he testified that he has prepared the pre-audit books for Zonnekus Mansions since 2010 and that the company, that is ZM, is still an operating entity. He stated that Fern Cameron is a director of the company but he could not be sure if Mr van der Merwe was a director, either previously or presently. It is common cause that Ms Cameron is Mr van der Merwe's mother. When asked about the current financial status of ZM he replied that until 28 February 2011 the company showed a very small income and was a company with small profits. He showed the Court, according to EXHIBIT 4.7 that the net profit for the year ending 28 February 2007 was an amount of R135 458,13.

He also testified that the share capital is owned by a trust called the Eagle Trust of which Mr van der Merwe is a trustee. The Eagle Trust is the only shareholder in ZM. He then took the Court through various entries in the latest trial balance and explained some of the entries reflecting assets and liabilities. He showed that the company had an accumulated loss of approximately R8.6million. He also referred to a company called Pearl Island Trading where Fern Cameron is also a director, and where ZM owes that company an amount of R767 965. He also pointed out that Mr van der Merwe has a loan account with ZM and that he owes the company an amount of R1.723 473. There was also a loan made by ZM to the Eagle Trust, which was a long term loan payable to the Eagle Trust by ZM. This amount was reflected as R3 007 448.00.

He also explained the revaluation of assets like the properties owned by ZM as well as some of the assets. The result was that the company had a profit for the year of R135 000. He advised the Court that he does not know what role Mr van der Merwe plays in the entity but understood that he attends to certain administrative issues in the business such as that of company secretary and company administration. The witness, when asked whether Mr van der Merwe had received any remuneration from ZM, replied that he could not see from the books if there was any remuneration paid to him. All he could say was that Mr van der Merwe lives at the residence situated on Woodbridge Island. This is the residence that is called and referred to as Zonnekus Mansion.

He also testified that the nature of the business was an asset holding business with income also derived from charter aircraft business If any income had been earned by Mr van der Merwe it would have been reflected in the books as directors remuneration, or reflected as salaries and wages. He could not find anything in the books to show that Mr van der Merwe had received any form of remuneration.

On cross-examination by the first applicant himself, Mr van der Merwe, he was asked about the liabilities of the company, and all the bonds outstanding and about all the bonds outstanding to various banks had increased. The witness confirmed that this was in fact the case. Mr van der Merwe also said that no payments were made on those bonds. The witness confirmed that they have all increased since the last trial balance was done in February 2010. He also commented on the values given in respect of the properties and what they referred to as revaluation was accounted for that. He was asked about the value indicated and said he had no knowledge of how this value was determined.

It was put to him by Mr van der Merwe that his function -referring to the first applicant - in the company was that of general manager, involved in the day to day running of the company. It was also put to this witness that he, referring to Mr van der Merwe, does not receive any remuneration and Mr van der Merwe again stressed that being a director of a company does not mean that one is entitled to any benefit or remuneration.

There were no questions from the second applicant to this witness, nor from the State.

The Legal Aid Board then questioned this witness and established that the Eagle Trust is the sole shareholder of Zonnekus Mansion. It was also confirmed that the company is involved in charter business with aircraft and ships. The witness was then referred to the documents submitted as EXHIBIT 4.1 to 4.7 and it was established that in order to get the figures reflected in the trial balance one has to look at the general ledger. The witness was then taken through a number of entries in the detailed ledger, and how the figures in the trial balance are made up. He confirmed that ZM owes the Eagle Trust an amount of R3 748 000 which is a company liability and that Mr van der Merwe owes ZM an amount of R1.7million.

It was then pointed out to the witness that the loan account of Mr van der Merwe had been wiped out by the end of 2009, yet on 1 March 2010 his loan account reflected an amount of R635 000 owed by Mr van der Merwe to ZM. The position as of 28 February 2011 was that this amount has increased to approximately R1.7million which the company owed to him. It was therefore established that during the year Mr van der Merwe received benefits worth approximately R1 million from the company. This was confirmed by this witness.

Questions were also asked about the movement of assets during the year, and counsel for the Legal Aid Board was able to get the witness to confirm that during the year with movement of assets and income received and taking into account fair valuation, which the witness confirmed was given to him by Mr van der Merwe, the net position of the company is that they have assets with a net value of approximately R41million. The witness was asked that if he saw these figures would he say that the company had little or no value, to which the witness replied that he did not believe that that would be the case and that the company has significant value in it.

Another question was put to the witness regarding the value of the properties given as R14.5million, and whether that value would be a fair reflection. The witness replied that on the face of the documents that would not be a fair reflection. The witness also confirmed that the amount of R46million put on the value was based purely on what he was told by Mr van der Merwe.

It was also established that the loan that Mr van der Merwe has is interest free and unsecured and he (van der Merwe) is neither a director, nor a shareholder of the company and yet he had an unsecured loan from the company in the amount of R1.7million. There are also no other persons with loans in the company. The witness confirmed these aspects. The final question related to the sales figures of R1 million which was described as charter fee income and also that the company had paid legal fees which were made up of personal legal fees as well as company costs, which the witness confirmed. There were no further questions and the witness was excused. The case was postponed until 7 December 2011 for further evidence.

On resumption of the proceedings on 7 December 2011 the State addressed the Court regarding the status of witnesses who had been subpoenaed for the court hearing on that day. The State advised that Mr Maritz who was supposed to be at Court to testify was not at Court due to trouble with flights. Only one further witness was present at court. Mr Damerell who addressed the Court also advised that there may be a problem with the witness Ms Fern Cameron, who was finding it difficult to come to Court and was in the process of obtaining legal advice regarding the subpoena she had received. The Court was advised that the issue would be addressed 14h00 on

8 December 2011, the next day.

The Court noted the address and explanation and directed to proceed with the one witness that was available.

The third witness to be called was Mr Roger Brian Reece. He testified that he is a chartered accountant with 15 years experience as a chartered accountant, also with previous experience as an accountant in the commercial environment. He has been the appointed auditor of Zonnekus Mansions (Pty) Limited for the past two and a half years. He supplied the Court with two financial statements for Zonnekus Mansions that he had drawn up and in his capacity as auditor. They were the financial statement for the year ended 28 February 2009, and for the year ending 28 February 2011. He advised that he did not supply the financial statements for the year ending 28 February 2010 as those figures would also be reflected on the financial statements for the year ending 28 February 2011. Both documents were handed in and marked as EXHIBIT 5.1 and 5.2 as part of the record.

He testified that he knows the previous witness, Mr Stadler, who prepared the pre-audit and that he is the bookkeeper of ZM and that the auditor report on the financial statements is correct.

On a question from the Court regarding the financial wealth of the company he regarded the company solvent and has potential going forward. He said the company's main asset being Zonnekus Mansion was on prime property and that Mr van der Merwe wanted to sell it but was not happy with the offers he had received. When asked who the directors are he replied that Mr van der Merwe is the main role player and the main decision maker in respect of this property. Mr van der Merwe's mother, Fern Cameron, is the sole director. He was questioned about benefit Mr van der Merwe received and the witness replied that he stays on the premises with his family and would be in a position to use the property as a guarantee for other ventures. The property is an asset which has market value more than the company's liabilities. He was then asked to explain the financial statement and stated that in 2009 the properties were over-valued and this has been corrected in the 2011 audit. The 2011 valuations now reflect a fair market value. He also stated the company was stripped of certain assets and transferred to Pearl Island (Pty) Limited. The purpose of this transfer of asset according to the witness was to streamline the ZM balance sheet. Reflected in the audit is that ZM still owns one helicopter as an asset in the financial statements and that an independent valuation has been carried out on the helicopter so therefore the value indicated is based on fair market value

It was also shown that according to the financial statements Mr van der Merwe owes an amount of approximately R2.2million to ZM, the loan account amount has increased substantially since the end of the 2010 audit. This aspect of course is important as it ties in with the evidence tendered by the bookkeeper, Mr Stadler showing that ZM paid for a number of items for Mr van der Merwe, which were then all debited to his loan account. Also significant is that this loan account has increased from a nil balance in 2009 to almost R2.2million as at 28 February 2011. This witness also confirmed the evidence of the bookkeeper, Mr Stadler, that this loan is and was unsecured and interest free.

The minute book reflecting decisions made in respect of the company was not in possession of this witness and he advised that it was under the control of Mr van der Merwe. Under cross-examination Mr van der Merwe put it to the witness that the book was seized during a raid conducted by SARS, in 2007. The witness could not confirm or deny this averment put to him.

Mr van der Merwe questioned the witness and put it to him that they had held discussions regarding valuations and opening balances as they had no information due to the raid on the company and the seizure of certain books and documents. It was further put to the witness that because certain entries could not be accounted for they were simply lumped as entries and debited to the loan account of Mr van der Merwe. The witness recalled discussions in this regard but said that he only worked with what had been given to him by the bookkeeper.

It was further put to the witness by Mr van der Merwe that the assets of the company are owned by the company and the shareholders own the company and that the Eagle Trust is the only shareholder. It appears as though the statement has been put to the witness to show that Mr van der Merwe was not a director and is not a shareholder, and therefore not entitled to the assets of the company, which shows a solvent status.

In cross-examination of the witness counsel for the Legal Aid Board established from the said witness that according to the financial statements the net value of the company amounts to approximately R42million. Counsel also pointed out that the loan account of Mr van der Merwe only arose in the 2010 financial year and therefore do not come from the tidying up process of the books as referred to by Mr van der Merwe and that the entries reflected in the financial statements are true and correct records of payments made to Mr van der Merwe by the company, all of which were confirmed by this witness.

The matter was thereafter postponed until 8 December 2011 for the evidence of further court witnesses. On 8 December 2011 on resumption of the proceedings, the Court was advised by Mr Damerell that only two further witnesses were present and that the witness Mr Maritz was not able to be present due to prior engagement and for logistical reasons. He also brought it to the attention of the Court that a third witness subpoenaed by the Court, Mr William Olmstedt, was present and that advocate William King was appearing on his behalf in an application in terms of Section 203 of the Criminal Procedure Act 51 of 1977, in that his client, referring to Mr King, was claiming the privilege against self-incrimination.

Mr King addressed the Court and advised that his client wished to use an American expression and "take the 5th". He had prepared an affidavit regarding the unwillingness of his client to testify. The Court requested that this argument stand down until after the lunch adjournment, which would enable the parties to peruse and consider the papers and thereafter address the Court on the merits of the application.

The State advised that two other witnesses were present and were ready to be called. Mr van der Merwe then requested to address the Court and submitted a bundle of documents relating to the Eagle Trust. The Court then stood the matter down until 11:30 to enable copies to be made and to peruse the bundle of documents. This bundle of documents was marked EXHIBIT 6.

On resumption the next witness called was Mr Robert Arnold van der Merwe. He testified that he is the brother of Mr van der Merwe and that he was asked to become a trustee of the Eagle Trust in 2005, when three other trustees resigned. He is now one of four trustees, the other being Mr van der Merwe (the first applicant), Ms Karen Greta van der Merwe, his wife, and Mrs Fern Cameron, his mother. He also confirmed that the only shareholding in Zonnekus Mansion is the Eagle Trust which owns 100% of the shares in ZM.

He has no position in ZM and Mr van der Merwe is the general manager, and his mother, Ms Fern Cameron, is the sole director of ZM. He also said that the beneficiaries of the Eagle Trust are all the immediate family.

On questions from the Court he testified that he knows very little about the work and assets of the trust. He also confirmed that since his appointment as a trustee he has not seen any books of account, nor have any trustee meetings been held. The only meeting held was on Wednesday evening, 7 December 2011, which was the previous evening before his testimony in this court. The trustees had decided to meet in lieu of the evidence and subpoenas and resulting from this took a resolution to meet. The minutes of the meeting were recorded on page 84 to page 86 of EXHIBIT 6. He said that Mr van der Merwe received no benefit from the trust and could not say if he had received any benefits from ZM. He is unaware of any loans made by the trust to any entities, nor aware of any loans taken from ZM b y Mr van der Merwe. His interpretation of the financial position of the trust is that the trust is dormant.

He said further that during the meeting held on 7 December 2011 Mr van der Merwe had resigned as a trustee and also renounced his rights as a beneficiary. The other trustees did not want to accept his resignation and it was then withdrawn. Their reasoning was that he does a good job running the trust and they wanted him to continue.

When asked whether Mr van der Merwe has any assets he stated that Mr van der Merwe has two helicopters in Siera Leone and two helicopters in Swaziland. This fact was not disputed by any of the parties. There were no questions by the applicants and the State.

In cross-examination counsel for the Legal Aid Board put it to the witness that he - referring to the witness - does not know much about Zonnekus Mansions and the operational issues of 5 the Eagle Trust. The witness confirmed this. It also became quite evident that the witness, when questioned on loans to Mr van der Merwe, had no knowledge thereof and was adamant that they did not question Mr van der Merwe about what his reasons were for wanting to resign as a trustee of the Eagle Trust.

The Legal Aid Board found this reasoning quite odd, that Mr van der Merwe runs a trust and they don't bother asking him for his reasons for tendering his resignation and then refuse to 15 accept it without any questions why he had wanted to resign. The witness did not comment on this.

The next witness who testified was Ms Karen Greta van der Merwe, the wife of the previous witness. She is the sister-in- law to Mr van der Merwe - the first applicant, and also became a trustee in 2005, when the first applicant requested her to become one. Similar to the previous witness she is only aware of limited information regarding the trust and only knows that she is a trustee and that the trust is the 100% shareholder in ZM. She, unlike her husband, said that the beneficiaries are IDS only the direct family of the first applicant. She confirms the content of the meeting held on 7 December 2011 by the trustees and that Mr van der Merwe, the first applicant, resigned and renounced his benefits, but they refused to accept his resignation and only accepted the renunciation of his benefits to the trust proceeds. She also said that his financial position was dire, and that he once had an empire but that it was all gone. She also confirmed that they would not be in a position to contribute to his legal costs and would have to make a decision - as trustees - if it comes to the trust helping to pay for legal costs.

The only party with questions was the Legal Aid Board, the other parties did not have any questions for this witness. Counsel for the Legal Aid Board put it to this witness that Zonnekus Mansion has a net value of R42million which she did not dispute. She also again confirmed that if it comes to a situation where Mr van der Merwe would have to pay for his own legal representation then the trustees would consider assisting him financially. She was also questioned about the meeting held on the 7th of December 2011 and why she did not question Mr van der Merwe about his decision to resign. She confirmed that it was not discussed at all and the only issue discussed was with him not to resign, and that only the renunciation of his benefits was accepted and resolved. There were no further questions and the witness was excused.

The next witness was Ms Fern Cameron. She was asked whether she was going to bring legal representation, as Mr van der Merwe had indicated earlier that she wished to consider that. She confirmed that she was prepared to proceed without any legal representation. The Court then requested that her evidence stand down until the following court day because the issue of Advocate King and Mr Olmstedt had still to be addressed and that he, that is Mr Olmstedt, was also from out of town.

She agreed, and she was excused and warned to appear again on the 9th of December 2011. Mr King then addressed the Court regarding the position of his client and the court witness, Mr Olmsted. He submitted heads of argument and addressed the Court orally. In essence the objection his client has to be called as a witness was that he - that is Olmstedt, is a suspect in pending criminal investigations relating to the company Executive Helicopters (EH), and wanted to exercise his right to privilege against self incrimination.

The State responded by saying that the witness was not an accused in the matter before Court but did confirm that there were criminal investigations against him. The further argument raised by Mr King at the time was that all matters relating to the company EH are subject to an ongoing investigation, and therefore his client has a right to exercise his right to silence. The Court then considered the application, and after careful consideration, this application was refused. However the Court found that this witness can claim his privilege against self-incrimination during his evidence when he is asked specific questions.

Mr William Olmsted was then called as the next witness. After having been sworn in and explained the nature of the inquiry, he was asked questions about the position of Executive Helicopters and some of the other entities that he was involved in. He said he knew of those entities. When asked if he was a director of Executive Helicopters he refused to answer after an objection from Advocate King as this may incriminate him.

He then advised the Court that he has absolutely no knowledge of any business dealing by any of the companies and has no idea as to what the current position is of the companies and whether Mr van der Merwe has received any benefit or has any assets in these companies. The Court had no further questions as it was clear that this witness would not provide any significant information or detail to the Court which would enable the Court to come to a just decision regarding the first appellant and would not assist the Court in a decision regarding the indigence or not of any of the two applicants before Court.

The other parties to the proceedings had no questions either for the witness and he was then excused.

On resumption on 9 December 2011 the previous witness Ms Fern Cameron was recalled. The Court explained the process and warned the witness in terms of her rights against self-incrimination. She confirmed that she understood this and the nature of the proceedings and was willing to continue with her testimony. She testified that the first applicant, Mr Gary van der Merwe, is her son and she is aware of certain business entities. She knows of the Eagle Trust and Zonnekus Mansions, she is a trustee of the Eagle Trust and prior to the meeting held with all the trustees on 7 December 2011 there were no other trustee meetings held.

She further testified that she is the only director of Zonnekus Mansions but said that she gave Mr van der Merwe a power of attorney to run the company as he saw fit. She trusted his business prowess and was certain he would run the business to the best of his ability. She advised that she was not aware of any benefit he derives from running the business and testified that Mr van der Merwe handles everything and that she does not get involved in any business dealings. She added that she does not discuss anything with him and was adamant he gets no money for his efforts, and explains that she feeds the family. She was also unaware of any loans made to the companies that he was involved in and cannot say what loans have been repaid. She again reiterated that if Mr van der Merwe brought her any document to sign she would sign it as she trusted him and accepted that whatever it was she believed to be correct.

On cross-examination by the Legal Aid Board, there being no questions from the other parties, she confirmed that Zonnekus Mansions was his - the first applicant's business and he ran it as he saw fit. From an evaluation of the evidence of Ms Cameron presented in Court it was quite clear that she has absolutely no knowledge or idea what is going on in the trust and in Zonnekus Mansions, and that Mr van der Merwe runs everything and she is basically left out in the dark. She appears to be simply a name on a piece of paper.

The matter was postponed until 12 December 2011 for the evidence of Mr Maritz who was from out of town. On resumption on 12 December 2011 Mr Budlender, the Legal Aid Board's counsel advised the Court that he had spoken to Mr

Maritz and confirmed that this witness could not provide any further information in the matter, as he had never met Mr van der Merwe before. The Court agreed, in the light of this information provided, that it was therefore not necessary to call the witness and the witness was therefore excused.

There were no further witnesses called in respect of the Court inquiry regarding the first applicant.

We proceed to deal with the evidence in respect of the second applicant, Mr Kilian. All these witnesses in respect of Mr Kilian were subpoenaed to testify in court commencing the week of 29 November 2011. Six witnesses were identified and subpoenaed.

The first witness was Peter John Kilian who was sworn in and he testified that he is the younger brother of Mr Paul Kilian, the second applicant. He is divorced with four children and he resides in Johannesburg, and works as a pastor and is involved in drug rehabilitation centres in counselling. He is not aware of the exact nature of the charges against his brother, that is the second applicant, but he is aware of the application that has been made for Legal Aid.

He testified that he is aware of the two trusts, referring to the

Paul Kilian Family Trust and the Pony Ranch Trust and advised that he became a trustee in 2009 after his brother had asked him to become a trustee of both trusts. This request was made to him when he spent a year with his brother in Cape Town due to the fact that he, that is the second applicant, was suffering from depression and was unable to conduct and manage the affairs of the trust.

He testified that he does not know much about these trusts and that the property owned by the Pony Ranch Trust was in a dilapidated state. He is aware of this because he said that he and his brother had plans to turn the property into a drug rehabilitation centre. On a question by the court as to whether any income is generated from this property he said that they did receive rental income a while ago but at present they were having big problems collecting the rental.

With respect to the Paul Kilian Family Trust he said that the main asset was the guest house in Camps Bay and this is the property which was earlier referred to in EXHIBIT 5, situated at 52 Eli Hutchinson Avenue, Camps Bay. He says that he only became a trustee of this trust because he was worried about his brother. He has no idea of the value of the property and is not aware of any other assets that are owned by the Trust.

He does not even have a copy of the trust deed and has no knowledge of the financial position of the trust. He wanted to help his brother get through a very difficult divorce and that is why he decided to become a trustee. He further testified that his brother had been very successful financially a while ago but that since his depression roundabout 2009 he has lost everything that he had. He says that no benefits were promised to him, that is the witness, and that he did not expect to receive any benefits from his decision to become a trustee.

He also testified that he has not assisted his brother financially but that a younger brother, John Kilian, might have offered some financial assistance. He cannot really take the Court any further regarding other entity his brother, the second applicant, has, only to say that he knows that the property in Hout Bay is subject to a divorce settlement. Only one meeting was held regarding his appointment as a trustee and no minutes were kept. He does not know what his rights and obligations are in respect of the trust, he has not seen any books of account and really has no further knowledge of the status of the trust.

The income received from the guest house referred to previously fluctuates from season to season, but he has no idea how much is derived from this. He said that his brother's bipolar condition has led to him, that is the second applicant, being unable to produce an income.

Mr Kilian, the second applicant, during cross-examination asked this witness whether he, that is the second applicant, was in a position to sustain himself financially. The witness answered that the business was not a great business and that he knew that his brother was battling financially.

During cross-examination counsel for the Legal Aid Board wanted to know whether properties owned by the various entities were purchased and with what funding. The witness answered that they were purchased a long time ago when they were relatively cheap. The witness also conceded and it was also established that the income derived from the guesthouse went to his brother and income from the other guesthouse near the beach in Camps Bay was very little as there are too many other shareholders in that entity. Reference made here to the property owned by Summersand Limited of which his brother was a director and shareholder. No further questions were put to the witness by Legal Aid Board and the State and the first applicant had no questions for this witness.

On further questions from the Court he advised that his brother was very wealthy and that he was an entrepreneur, he has made a lot of money and has also lost a lot. He is not aware of any property owned by his brother and cannot assist the Court in determining whether his brother has any other assets, either in South Africa or offshore.

The next witness called by the Court was David Frymer who after an affirmation to tell the truth testified that he is an auditor with 33 years experience. He has been the auditor of three business entities since 2007. He audited the annual financial statements of Pure Platinum Property Holdings Limited, Costa Atlantica (Pty) Limited and Summer Symphony Properties 45 Limited.

He only prepared the audits for the three entities for the financial years 2007 till 2009 and has no knowledge of the affairs of the companies beyond that period. He handed in the audited financial statements of the three entities and they were marked as EXHIBIT 3(1) to 3(3). He also testified that Mr Kilian, the second application hereon, was a director of the companies but he has subsequently resigned as a director. He, Frymer, received his letter of resignation on 19 July 2011. Framer testified that he is still the appointed auditor for the three businesses and has not prepared financials subsequent to the 28 February 2009, because the accountant, Mr Pombo has not sent him the financial information to prepare the later financial statements.

In essence his explanation of the financial statements of the companies was that they were in a deficit situation of R950 000 and that Mr Kilian has a loan account and the company owes him R345 000. He explained further that Costa Atlantica is a wholly owned subsidiary of Pure Platinum Holdings and that Pure Platinum is the only shareholder and that Mr Kilian's shareholding amounts to approximately 12%. The value of the shares is approximately R12million.

He was asked about the share swap referred to by Mr Kilian and he explained that such a transaction must be resolved and approved, and he would have been notified of that. He is not aware of such a transaction as it should have been recorded in a transfer share document and written up in the transfer register.

The value of the shares in the Costa Atlantica are known because their liabilities exceed the assets and the shares are therefore worth nothing on paper.

On questions in response to questions from Mr Kilian it was established that Mr Kilian still owes the auditor R120 000 in fees, and that he, Kilian, said that he no longer owns 12% of the companies. Mr Kilian put it to this witness that the company Costa Atlantica which owned the property situated at 21 Central Drive, Camps Bay, is in arrears with the bond repayments, rates, water and electricity. With regards to the transfer of the shares he questioned the witness about the procedure and said that he signed over the shares and it was a valid transaction. The witness was unaware of that.

During cross-examination by counsel for the Legal Aid Board the witness conceded that Costa Atlantica owes Mr Kilian R345 000 in loans, and if liquidated would have to pay him and he would therefore be entitled to R345 000. It was also put to the witness that Summer Symphony Limited has R5.5million in equity and that Costa Atlantica has R8.3million in equity, and if all properties were sold Mr Kilian would be entitled to a payment of approximately R2million, it being equal to his 12% shareholding. This was conceded by the witness who confirmed that it was fair to make that calculation. If Mr Kilian sold all his shares then he would be worth approximately R2million.

The next witness called was Mr Louis Pombo, who testified that he is an accountant in practice since 2002 and did Mr Kilian's personal tax returns. He was also responsible for preparing the pre-audit in respect of the three entities mentioned above. He explained that the pre-audit is preparing the ledgers for the audit to be done by the registered auditors. He testified that he is aware of the two trusts owned by Mr Kilian and has copies of the trust deeds but indicated that he knows nothing more about these trusts, other than having the trust deeds in his possession for safekeeping.

He only attended to the personal tax returns for Mr Kilian, the second applicant, and only until 2005. Since then he has not done any work for Mr Kilian. He testified that he has nothing to do with the running of the trust, and only did personal tax returns until 2005. He did no auditing work on the trusts and could only tell the Court that Mr Kilian earned interest in respect of the companies. He could not say if income was earned from the trusts. He would simply request Mr Kilian to indicate where and what the sources of his income were, and would then reflect these amounts in his personal tax returns. He also has no knowledge of the current financial status of the three companies, as he was only responsible for the preparation of the audit file for Mr Frymer the auditor. On a question from the court regarding Mr Kilian's statement that he submitted returns for 2009 and 2010 in the amounts of R45 000 and R70 000 respectively he answered that these amounts were probably interest he earned from the companies and he has not yet submitted those tax returns.

The Court requested Mr Pombo to stand down so that copies could be made of the tax file he had brought to court.

The next witness who testified was Sonya O'Donnell. She is the ex-wife of Mr Kilian, the second applicant. They were married for 16 years and got divorced on 16 March 2009. In terms of the divorce settlement she must get the property in Hout Bay, as well as R250 000 in respect of the other two properties in Camps Bay. To date she has not received anything yet. There is a tenant in the Hout Bay property and a business is being run from there. The tenant is Tyrone Oates and he has been there for a few years already. The property in Hout Bay is owned by Silver Solutions CC and she is not sure of the rental agreement between Mr Oates and Mr Kilian. All she knows is that Mr Oates has not paid rent at all during the past year because Mr Kilian owes Mr Oates some money and that is why he uses the property rent free. She has received no income at all from this property.

The reason why the property has not yet been transferred to her in terms of the divorce agreement is because Mr Kilian did not have the required funds to effect the transfer. The property has been on the market but no offers have been taken. She said that her current husband was going to pay for the costs to have the property transferred into her name. Mr Kilian currently manages the property but receives no income for performing that duty.

She was questioned about the relationship between Mr Oates and Mr Kilian and she told the Court that it was a very complicated matter involving shares and monies owed. She said that Mr Kilian is also supposed to pay maintenance in an amount of R15 000 per month but has not been able to do so for a while. The last payment he made was a R1 000 in November 2011. She also advised the Court that a friend of Mr Kilian in Germany paid school fees for the children for the last few terms. She said that in the past he had been very entrepreneurial and that they had lived a high lifestyle. He had made a lot of money and was very wealthy. He has now lost it all and only gets money from the guesthouse. He has been diagnosed with bipolar disorder and because of that has been unable to work.

Mr Kilian during his cross-examination of her basically just established that he has many liabilities and owes a lot of money to various entities.

Counsel for the Legal Aid questioned the witness regarding the trusts and in essence was able to establish that although she was a trustee she knew nothing about a trust and the income and trust accounts. She clearly stated that Mr Kilian was in control of the trust and her appointment as a trustee is purely in name only.

There were no questions from the first applicant and the State, and the witness was excused.

The next witness called by the court was Tyrone Oates, who testified that he knows Mr Kilian as they were in business together since 1998. They are co-directors and co-members in various business entities. He said that there was a complication regarding some financial issues between him and Mr Kilian and therefore he uses the Hout Bay property as a business premises without paying rent to Mr Kilian. The use of this property is to set off what Mr Kilian owes him. He is also aware of the transfer of the property to Mr Kilian's ex-wife and is currently in the process of negotiating a rental amount. Every month he uses the property to reduces the liability that Mr Kilian owes to him.

Regarding the property owned by Costa Atlantica in Camps Bay he said that the only shareholders Pure Platinum and there are three directors in that company. Mr Kilian resigned as a director. Out of the three units two have been sold and a third is rented out at R32 000 per month. This rental goes towards servicing the outstanding bond amount of R1 OmiMion and other expenses. The property has been on the market for a while already, the initial market price was R18million but that has been reduced to R12million.

He said that Mr Kilian had not transferred any shares to him and had transferred the shares to another company, he was not sure what entity the shares had been transferred to.

Mr Kilian questioned the witness and established that the that the value of the shares is less now than a few years ago. He, also said that he was in the process of signing shares over to Mr Oates but due to an argument he placed the shares in another entity. The witness confirmed this.

During cross-examination by counsel for the Legal Aid Board Mr Oates said that Mr Kilian received a management fee and interest from the other companies. Mr Oates could also not say to whom the shares in Costa Atlantica had been transferred to, There were no further questions to this witness and he was excused.

The witness Louis Pombo was recalled and he handed in the tax file of Mr Kilian marked as EXHIBIT 3(4). He explained the contents of the tax file and said there were full tax returns till 2005 and that since then there have only been provisional tax returns. He cannot say what the current financial position is for Mr Kilian and he says he is aware of the fact that he is battling financially. He told the Court that Mr Kilian has been living off his ABSA One account, that's referring to ABSA Bank, as he had an excess facility there of R6million. He could not supply the Court with any other information regarding the income earned by Mr Kilian. On questions from the Legal Aid Board and Mr Kilian he just confirmed that he only submitted provisional tax returns since 2005 and could not say what the income was earned by Mr Kilian. He did say that Mr Kilian was in financial distress.

He has not seen any recent documents regarding the income of Mr Kilian and bases his figures only on what Mr Kilian has told him. He has also told the Legal Aid Board when they investigated the matter for purposes of drawing up the Section 3B report what Mr Kilian had told him and added nothing further.

The final witness, Mr C J Rezelman was by agreement between all the parties excused due to the fact that his evidence had already been covered by the auditor, Mr Frymer, and it would therefore amount to a duplication of evidence. It was therefore agreed that his evidence was no longer necessary and by agreement he was excused by the Court.

There were no further witnesses called in respect of the second applicant.

The Court then indicated that once all the witnesses had completed their evidence and that there were no further witnesses necessary or able to be called by the Court, they only issue that remained is whether the two accused wish to testify in the application they had submitted for Legal Aid.

The Court warned both applicants of their rights to remain silent and their right against self-incrimination and both of them indicated to the Court that they fully understood what the nature of their rights were.

The first applicant indicated to the Court that he first wanted to obtain a copy of the full record before he decided whether or not he would testify himself. He therefore advised the Court that he elected not to testify until the transcript was made available to him. He advised that there were certain issues he wished to clear up first before he made a decision.

The second applicant indicated to the Court that he had already said everything and therefore advised the Court that he would not testify.

The Court then considered the further conduct of the proceedings and notified the parties that if there would be no further witnesses or evidence then the parties should consider submitting heads of argument. The Court instructed the parties that heads of argument should be submitted one week before the start of the new term and that accused 1 would have had an opportunity to peruse the record by the 16 January 2012. Accused 1 would have to indicate by 16 January 2012, whether he would still elect to testify or not and if not then he would submit heads of argument by 18 January 2012.

The parties accepted this instruction and the case was then postponed until 23 January for oral submissions regarding the witnesses called by the Court.

On resumption of the matter in court on 23 January 2012 Mr Damerell notified the Court that the State had received details from the registrar of companies regarding all the companies mentioned where Mr van der Merwe had been involved in some form or another. He advised the Court that the bundle of documents handed in will complete the evidence already tendered with regards to the financial affairs of Mr van der

Merwe. The bundle of documents showing all the information from the registrar of companies was then tendered to Court and marked as EXHIBIT 9.

Upon the perusal of these documents EXHIBIT 9 could be summarised as follows:

1. Mr van der Merwe started a number of companies and was also appointed as a director of many of these companies. Many of these companies were started in the late 1990's and there have been numerous name changes and changes to directorships and the names of the entities.

2. The companies in which Mr van der Merwe was involved were;

2.1. West Side Trading 320 (Pty) Limited which changed its name to Siyandisa Trading (Pty) Limited;

2.2. Summer Days Trading 712;

2.3. Madiba Air (Pty) Limited, which changed to Madiba Air and Sea (Pty) Limited.

2.4. Executive Helicopters (Pty) Limited which was changed from a close corporation in 2002 and in which Mr van der Merwe is listed as an active director on 30 September 2009 and resigned as a director on 31 October 2009.

2.5. Zonnekus Mansions (Pty) Limited with 100 shares and Mr van der Merwe as director and secretary of the company. Mr van der Merwe's mother, Ms Fern Cameron was then appointed as director in 2001, and these records also show that Mr van der Merwe resigned as a director of this company in 2004. On 5 August 2009 it was confirmed that Fern Cameron was appointed as a director and all the other directors resigned. She was therefore the only director left of this company.

2.6. Helicopter and Marine Services (Pty) Limited was incorporated in 2002 with 100 ordinary shares. Mr van der Merwe as the sole shareholder resolved that the authorised share capital of the company be subdivided from 1000 ordinary par value shares of R1 each to 1 000 000 (one million) ordinary par value shares of . R0,001 each. With this change Mr van der Merwe has effectively become the owner of 1 000 000 shares in this company. Mr van der Merwe resigned as a director of this company in 2006 and was then reappointed as director in October 2007 when the other director resigned. There are currently no other directors listed for this company, and as it stands Mr van der Merwe owns all the shares, being one million shares in this company.

2.7. Mr van der Merwe was also listed as an active director of Two Oceans Aviation (Pty) Limited in 2007.

2.8. Another company where Mr van der Merwe was involved was a company called Helibase (Pty) Limited, he is listed by the certificate of confirmation as an "active director" and the company as not having deregistered.

As the matter currently stands Mr van der Merwe is the active director of at least five companies, all of which are still registered as such with the registrar of companies. He has been appointed and has accepted these directorships on three occasions of three different companies in one day, being on the 10th of October 2007. 4. It is clear as it appears from the documents submitted by the Registrar of Companies that Mr van der Merwe has been a prominent figure in certain industries and still commands an active role in many of these companies. Neither the Legal Aid Board, nor this Court, were provided with any financial statements in respect of any of these companies except for Zonnekus Mansions.

Mr van der Merwe then advised the Court, after this EXHIBIT 9 was handed in, that the heads of argument were only required if he had elected not to testify himself. He notified the court that he now wished to testify but reminded the Court of his right not to answer any questions that would amount to self incrimination. He was sworn in and he testified that he presented the Legal Aid Board with a file containing all the
information they needed. The file also contained all the incurred liabilities and pending and completed legal action that has been taken against him. He stated that it is undisputed that he has warrants and judgments against him to the tune of R93million. He also stated that he was unaware of the fact that he was a discretionary beneficiary in the Eagle Trust and he has now renounced any benefit he had with regard to the Trust. He also handed in a CMA report, which stands for comparative market analysis, which reflected that the value of the properties owned by Zonnekus Mansions (Pty) Limited is R14.6million and that it owes 14.5million in debt. He testified that Zonnekus Mansions is worthless and that the Legal Aid Board did not take cognisance of the information that he had provided them with. He stated that all the information requested by the Legal Aid Board was irrelevant and that he was still also awaiting the outcome of his request for reasons from the Legal Aid Board pursuant to his second application for Legal Aid which was also refused by them. He also tendered this written request into Court and it was marked EXHIBIT 10.

He then indicated there were no further factors which he wanted to indicate to the Court. On questions by the Court he confirmed that he had a pending civil matter in Atlantis Court regarding a civil dispute with SARS. He advised that anything related to SARS was very complicated and he elected to remain silent in this regard. The Atlantis case was then handed into court as per EXHIBIT 11. He did not however dispute nor object to the contents of this court file. He confirmed that he has instituted interpleaded proceedings in that court, the Atlantis Magistrate' court on behalf of a Swaziland based company Executive Helicopters Swaziland (Pty) Limited.

On cross-examination by the LAB it was put to Mr van der Merwe that the CMA report was not accurate as the size of the properties compared varied significantly to the size of his own property, and that the report was not accurate in many respects. Mr van der Merwe conceded that this was correct and replied that the Court can attach whatever weight to the report as it deems fit.

He was questioned on his involvement with ZM and it was put to him that he effectively runs the company while his mother is just a token director. It was also put to him that the loans of R1.2million were known to be interest free and unsecured. He insisted that he did not think it relevant to disclose these aspects as these loans gave him no benefit at all. He was also questioned on the values of the various properties owned by ZM and it was put to him that he had tried to devalue the properties which he denied.

Regarding the aircraft he still owns in Sierra Leone he advised that they are all under attachment and can gain no benefit from those helicopters. It was also put to him that ZM and the Eagle Trust were his own creations and that the trustees of the Eagle Trust approved the financial statements showing that the value of the company was R42.2million.

He was also questioned about his involvement in the company, Executive Helicopters, and could not adequately explain what happened to the assets of this company in excess of R200million between 2009 and 2011. He explained, that is Mr van der Merwe, that he had lost everything, his position was now dire, and he had no income at all.

He was also questioned about his bail applications and statements made in 2004 to which he objected, and he also objected to the manner in which those questions were asked.

In summation of the Legal Aid Board's cross-examination it was put to Mr van der Merwe that he had falsely claimed not to be a beneficiary of the trust, that he had said that Zonnekus Mansions had little or no value and did not disclose the financial statement himself and that the witnesses, Mr Stadler and Mr Reece had brought these statements to the attention of the Court. It was further put to him that his representation that the value of ZM was R14million was false and that he gave himself interest free loans and further that if the Court did not call the witnesses the Court would not have known about the financial statements and the loans he had taken from ZM.

On questions from the Court Mr van der Merwe stated that his financial position was extremely poor and that he had absolute no assets of foreign currency offshore. He explained what the status of the aircraft were in Swaziland and Sierra Leone and that he was trying to establish business opportunities in Africa. He also stated that he understood the charges against him and that the basis of his defence would be one which is highly technical. He concluded by adding that all the parties have conceded that he qualifies on the first question of substantial injustice and if not provided with legal aid at State expense it would amount to a travesty of justice if he had to represent himself when the matter is tried.

He had nothing further to say and indicated that he did not wish to call witnesses either. There were no questions from the other parties.

The matter was adjourned until 9 February 2012 for oral submissions and heads of argument. The Legal Aid Board as well as Mr van der Merwe submitted heads of argument. In presenting further oral submissions Mr van der Merwe submitted that he would not repeat his previous arguments as he had already covered many of the issues in his earlier argument.

Essentially he argued that the only point the Court must decide on is the issue of indigence and affordability. He repeated his submissions on the cost and the length of the trial and argued that this aspect has not been rebutted by the Legal Aid Board.

He explained that when he said he was not a beneficiary of the Eagle Trust it came out wrong and submitted that the document of the trust deed was a generic document. The trust however remains dormant and has no income. He basically repeated his submissions that ZM is in financial distress and the values shown are irrelevant and made the averment that values of properties can be adjusted in any way by means of what he referred to as creative accounting. His explanation of this was that the balance sheet can be drafted in a number of different ways. He argued that the auditors should have been more careful when preparing the values of the properties.

He reiterated that his brother and all the other witnesses confirmed that he no longer has any money and that he is suffering financially. He also stressed that the Court when conducting this inquiry was not entitled to go into the private lives of certain people and that some things should remain private.

He denied that he has impoverished himself as submitted by the Legal Aid Board and argued that the only question the Court must consider is whether he can afford his own representation and then asked that a order be granted that the matter must be stayed in accordance with his amended notice of motion.

Mr Kilian repeated in closing that he stood by what he said in his heads of argument that he is so far in arrears with repayments and has no funds or income to be able to afford his own legal representation In his heads of argument, to which reference has been made before, he states the following:

"My submission is the following, should I employ a legal team to defend me the cost per day would R15 000 for a lawyer, R15 000 for a junior counsel (sic), R30 000 for a senior counsel. Total being R60 000 x 180 days equal R10.8million. So therefore my submission is where will I find R10.8million. As per evidence submitted by your witnesses they substantiated about my lack of funds."

The Legal Aid Board argued that the valuations were fair, and asked the Court to find that the Eagle Trust has assets of R42.2million and when Mr van der Merwe refers to substantial injustice there would be substantial injustice for the public if legal aid was granted knowing that Mr van der Merwe could still afford to contribute towards his own private legal costs. They argued that Mr van der Merwe had attempted to impoverish the trust and to reduce its value. The Court would not have known this if the Court did not conduct the inquiry and cover every aspect by even calling the necessary witnesses. It was submitted further that Mr van der Merwe was reluctant to provide names and details of witnesses as they argued that he knew if they came to Court and disclosed the true financial position the truth would come out that he was in a financial position to afford his own legal representative.

The Legal Aid Board requested the Court to decline the application and failing that to order that Mr van der Merwe has access to at least some of the funds and when that runs out then he could re-approach the Legal Aid Board for legal assistance.

The argument in respect of Mr Kilian was that he too has assets which he can dispose of as his net value in the companies was worth R2million. They asked the Court to decline the order to grant legal aid and alternatively Mr Kilian could make an upfront payment or he can sell his shares and then contribute towards legal costs in the further alternative.

These submissions concluded the matter and the Court's inquiry in terms of Section 3B. The matter was then adjourned until the 15th February 2012 for judgment on the application brought by both the accused, the applicants herein, for the State to provide them with legal representation.

JUDGMENT - ASSESSMENT AND FINDINGS

In our assessment and findings we deal firstly with the status of the report submitted by LAB in terms of Section 3B(2) of the Legal Aid Act 22 of 1969, as amended - the Section 3B report. The gist of the submissions made by the first applicant in this regard with which the second applicant identified himself are essentially fourfold. Firstly the Section 3B report is formally defective in that it is not a report from and/or by the Board as envisaged in section 4 of the Legal Aid Act 22 of 1969 (the Act). Secondly the Section 3B report is incomplete. Thirdly the Section 3B report does not comply with the requirements of the Legal Aid Guide, alternatively it was not compiled in /DS accordance with the requirements and guidelines as set out in the guide. Fourthly the Section 3B report is bias, one-sided and/or reflects the bias of its drafters towards the applicants. In the circumstances, so it was argued, this Section 3B report 5 is invalid and should be struck out in its entirety.

The Legal Aid Board is obliged to submit a report to the Court where the Court has referred a matter to it for evaluation, and report. This is evident from Section 2 of the Act.

The Section 3 B report in this matter was submitted to this Court pursuant to such a direction in terms of Section 3 B (1) of the Act. The report was duly completed and includes

1) a recommendation whether the applicants qualify for legal representation at the State expense;

2) particulars relating to the personal circumstances of the applicants and whether any other legal representation at State expense is available or has been provided; and

3) other factors which, in the opinion of the Board should be taken into account by this Court in its determination whether or not to grant legal representation at State's expense to these applicants.

The report was compiled and signed by Mr J Esterhuizen w ho is the head of the Cape Town Justice Centre of Legal Aid South Africa on 28 October 2011. As such he is the duly delegated official who can act and exercise the powers delegated to him by the board in terms of Section 7 of the Act. Mr van der Merwe has also conceded that the board is indeed authorised and capable to delegate its powers in terms of the provisions of the Act. In the circumstances this Court finds that there was substantial compliance by the LAB in compiling and submitting this report in terms of Section 3 B of the Act.

This Court have studied the Section 3B report carefully and objectively and could not find that it is incomplete or any indication therein of bias towards the applicants. In paragraph 12 of the report it stated unequivocally:

"On the basis of information available to it, Legal Aid South Africa has attempted to establish the financial circumstances of Mr van der Merwe and Mr Killian."

This is neither an indication that the report is incomplete, nor that it is biased towards the applicants. To the contrary, it suggests that the LAB was confined to and constrained by, the information that they have been provided with by the applicants, upon the various request for such relevant information by the LAB to the applicants. Moreover both applicants had been afforded ample opportunities to place important and relevant information before the LAB and this Court, even subsequent to the submission of that report to this Court on 28 October 2011. This Court can therefore not agree with the applicants' contention that the Section 3 B report is invalid, incomplete and/or bias towards them. It therefore follows that the Section 3 B report is properly before this Court.

The Court now turns to the contents of the Section 3 B report. Having taken into account all the information at its disposal at the time regarding the first applicant, including:

1) employment income derived from employment;

2) details of assets owned and/or financial interests in any assets owned;

3) the funding of his previous litigation and

4) his liabilities,

which at the time was reported to be R81 744 839,00 and which has subsequently increased to R90 044 839,00, the following recommendation was made to this Court:

"(a) As a result of Mr van der Merwe's failure to answer fully the questions which were raised in the previous application and the judgment of the full bench; the apparent inconsistencies in the information which he has provided; his failure to answer fully the questions raised in these proceedings; and the matters raised in the Legal Aid S A answering affidavit, it is not possible to conclude that Mr van der Merwe's personal circumstances are such that he is not able to afford legal representation;

(b) No other legal representation appears to be available, and none has been provided;

(c) Legal Aid S A recommends that for the reasons set out above, it cannot be found that Mr van der Merwe qualifies for legal representation at State expense."

Having taken into account all the information at its disposal at the time regarding the second applicant, including:

1) employment and income derived form employment;

2) details of assets owned and/or financial interest in any asset owned;

3) his liabilities;

4) funding of previous litigation and his ex-spouse and children, the following recommendation was made to this Court:

"26.4As a result of Mr Kilian's failure to answer fully the questions which were raised in the previous application and the judgment of the full bench, in particular with regard to his assets; and his failure to answer the questions raised in these proceedings; and his own statement that he has trust assets of R7.7million; it is not possible to conclude that Mr Kilian's personal circumstances are such that he is not able to afford legal representation;

26.5. No other legal representation appears to be available and none has been provided;

26.6. Legal Aid S A recommends that for the reasons set out above, it cannot be found that Mr Kilian qualifies for legal representation at State expense."

We deal firstly with the first applicant, Gary Walter van der Merwe. In the Section 3 B report, the following regarding the first applicant is reported:

"13. In his application for legal aid, Mr van der Merwe stated that:

13 he was unemployed;

14 he had no income;

15 he had no assets;

15.1 neither he nor his spouse was the beneficiary of any trust.

14. In his most recent application to this Court, Mr van der Merwe stated that there had been a substantial change in his financial position, brought about by various warrants for execution against him (annexure W LAB7), and what he said was the imminent liquidation of Executive Helicopters (Pty) Ltd.

15. In order to obtain clarity as to his financial position, Legal Aid SA requested the information set out in LAB7 and LAB8.

16. Mr van der Merwe responded in a document which was served on Legal Aid SA on 22 September 2011 (LAB 11).

17. In analysing the financial information provided by Mr van der Merwe up to this stage, Legal Aid S A found the following inconsistencies or non-disclosures:

17.1 Employment income derived from employment:

17.1.1. In his Legal Aid application Mr van der Merwe stated that he was unemployed.

17.1.2. However on his own admission, he is a pilot and is employed to recover helicopters. He further states that for these services he is employed on a sub-contractual basis and he is only paid accommodation and travel allowance.

17.1.3. Apart from retrieval of helicopters Mr van der Merwe also does maintenance and repairs to helicopters and rebuilds helicopters.

17.1.4. Mr van der Merwe has also been involved in a certain property transactions.

17.1.5. His passport reflects that he travels frequently and widely; with destinations including Sierra Leone, USA, Mauritius, Zambia, Germany and Swaziland.

17.1.6. The frequency of Mr van der Merwe's travels to Swaziland has increased over the period 2010 to 2011.

17.1.7. He has, however, failed and/or refused to disclose the reason(s) for his travels, whether for employment, by whom he was employed, remuneration and who carried expenses for such travels.

17.1.8. In terms of a CIPC search done on 19 October which reflects that Mr van der Merwe is a director to the following active companies, Madiba Air and Sea, S A Administration Services, Tantco Global, Amrine Integrity, Court Aviation, Wealth International Network WIN International Network, Two Oceans Aviations, Helicopter and Marine Services, Helibase and Stokvel Properties.

17.1.9. Mr van der Merwe also deposed of two affidavits in the matter of Antaris and another v Executive Helicopters (CPD) case number 8853/2009 respectively 07th and 19th May 2009 in which he describes himself as a director of the company which has a value in excess of R200 million.

17.1.10. A letter dated 6 August 2009 to Legal Aid S A stated that the company no longer has any assets with no explanation of what happened to these assets.

17.1.11. The trust deed of The Eagle Trust indicates that Mr van der Merwe was a donor to the trust. He is a trustee of the trust, an income beneficiary and a residual capital beneficiary of the trust.

17.1.12. Mr van der Merwe has failed to disclose the value of The Eagle Trust but for the trust being a shareholder of Zonnekus Mansions (Pty) Limited which interest will be dealt with later in this report.

17.2. Details of assets owned and/or financial interest in any assets owned:

17.2.1. In terms of the application for legal aid Mr van der Merwe stated that he owns no assets or interest in assets of whatever nature.

17.2.2. In terms of the audited financial statements of Wellness International Network Ltd, a company involved in the alleged offences Mr van der Merwe, as a shareholder made an interest free loan of R28 432 376 to the company.

17.2.3. His 2009 tax return reflects a R15million interest in a private company.

17.2.4. Mr van der Merwe states that the company in which this interest is held is Helicopter and Marine Services (Pty) Ltd.

17.2.5. According to Mr van der Merwe this company has ceased trading, was deregistered, has no assets and he has written off the loan in the amount of R15 million.

17.2.6. With reference to the above mentioned search it is reflected that this company is active and Mr van der Merwe is a director.

17.2.7. In terms of a deeds search done (in the previous application for legal aid) it became apparent that Zonnekus Mansion (Pty) Limited owns five immoveable properties;

17.2.8. The Eagle Trust is a shareholder in this company, being Zonnekus Mansion (Pty) Ltd;

17.2.9 on 26 October 2011 Mr van der Merwe made available certain information regarding these five properties, we annex hereto annexure marked LAD11, a summary prepared by Mr van der Merwe in this regard,

17.2.10. The amounts due differ in certain instances from what is reflected by the supporting documentation supplied;

17.2.11. However what is of importance is that the values are based on municipal valuations which are known to be far lower than market value;

17.2.12. Illustrative of this fact is the property erf 902, which is currently on the market for R39million and which has a municipal value of R2.5million;

17.2.13. Mr van der Merwe does not disclose the nature of his properties, they are seemingly residential properties, and it is not apparent whether Zonnekus Mansions (Pty) Limited earns any income from them.

17.2.14. However one of the properties owned by Zonnekus Mansions (Pty) Limited is Erf 902, Milnerton, Cape Town, Western Cape.

17.2.15. Currently this property is on the market for R39million.

17.2.16. ABSA Bank Limited being the bondholder issued summons for arrear bond instalments;

17.2.17. On 29 September 2011 the matter was settled on the basis that Zonnekus Mansion (Pty) Ltd and Mr van der Merwe's mother, Fern Cameron would pay ABSA Bank Limited R2 186 866.61 (in respect of capital) and R443 775,55 (in respect of arrears) together with interest and costs.

17.2.18. A CIPC search done on 19 October 2011 reveals that Mr van der Merwe was previously a director of Zonnekus Mansions (Pty) Limited and his mother is currently the sole director of this company.

17.2.19. Such payment to be effected in monthly instalments of R20 000 with the first payment to be done on the 7th of October 2011.

17.2.20. In terms of the audited annual financial statements of Wellness International Network Limited, a company involved in the alleged offence, the Eagle's Trust made an interest free loan to it of R9 818 829.

17.3 The funding of previous litigation. In the law reports the following matters are reported, to which Mr van der Merwe was a party;

17.3.1 Minister of Safety and Security v Mr van der Merwe and others, 2011(2) SACR 301 (CC)

17.3.2 Minister of Safety and Security v Mr van der Merwe and others,2011(1) SACR 211 SCA

17.3.3. Van der Merwe and Others v Additional Magistrate Cape Town and Others 2010(1) SACR 470 (C).

17.3.4. In all three these matters Mr van der Merwe was represented by both senior and junior counsel.

17.3.5. In this matter Mr van der Merwe successfully applied for the setting aside of the search warrant.

17.3.6. In the two (2) subsequent appeals the order setting aside such search warrant was upheld.

17.3.7. Apart from disclosing that Advocate Katz SC acted pro bono in the hearing, Mr van der Merwe does not disclose payment of the second counsel, his instructing attorneys nor the legal costs recovered.

17.4. Liabilities:

17.4.1 Mr van der Merwe sets out his liabilities in annexure LAB1 to be R81 744 839,00. It has subsequently increased to R90 044 839. In the light of the fact that the supporting documentation provided by Mr van der Merwe is incomplete we attempt to deal with such as follows:

(a) the greatest of these claims is held by SARS;

(b) from the provided documentation this claim is against Executive Helicopters (Pty) Limited and relates to VAT payments;

(c) the amount owed to Transnet stems from an action between Executive Helicopters (Pty ) Limited and Transnet Limited, case number 16382/2007.

(d) The claim by TS Legal Services in the amount of R113 011 relates to Mr van der Merwe's cell phone account.

(e) Mr van der Merwe states that the personal loans by Sirosa Finance and J Cameron in the total amount of R750 000 were made to cover living and medical expenses.

(f) Mr van der Merwe does not disclose the monthly total of his living expenses, nor the breakdown thereof.

(g) On further documentation supplied on 21 October 2011 such is in the name of his spouse and the statement from his son's school for the period 11/05/2010 up to 1 December 2011, an amount of R222 836 was due of which R193 426 was settled by way of EFT.

(h) The supporting documentation regarding medical expenses does not come close to a total of R750 000.

(i) For the remaining amounts reflected on annexure GWLAB7 it appears that Mr van der Merwe is jointly and severally liable with other defendants.

(j) Financial information requested regarding the spouse, children and parents, Mr van der Merwe has otherwise indicated that he refuses to make such available, and further pre-empts the likelihood that such persons will likely not provide such information as it is their constitutional right not to do so.

17.4.4. In the previous proceedings and in the answering affidavit which it filed in this application the Legal Aid SA raised questions regarding the assets of Zonnekus Mansions (Pty) Limited. These remain unanswered. There appears to be a reason to believe that the information that Mr van der Merwe in this regard is not accurate."

This Court will first deal with the question whether Mr van der Merwe is employed or unemployed. In the full bench judgment of this division in the matter between Legal Aid South Africa v Gary Walter van der Merwe, Paul Kilian, National Director of Public Prosecutions WCHC case number A409/2010 judgment delivered on behalf of the full bench by Louw, J on 4 November 2010, referred to hereafter as a full bench decision, in dealing with this aspect that Court found as follows:

"Mr van der Merwe stated in his application for legal aid that he is unemployed. However during the course of several hearings before the court a quo Mr van der Merwe stated that he is a pilot and is employed to recover helicopters in Africa. He does maintenance, the retrieval, rebuilding and repair of helicopters. He is according to him, also involved in a certain amount of property transactions. From his statements to the Court it further appears that he has often travelled to destinations elsewhere in Africa, Mauritius and Germany. In an affidavit deposed to by Mr van der Merwe on 24 September 2009 in an application for an amendment of his bail conditions he stated that since his arrest in 2004 he had travelled internationally on 35 occasions. In 2007 for instance he planned a three week trip to the United States of America."

In his first application to this court in his founding affidavit dated the 22^nd of July 2011 Mr van der Merwe, the first applicant, states the following, in paragraph 32 of that affidavit:

"I have no idea how prima facie the full bench came to the conclusion that I may be vested with assets in the amount of R120million, this is with the greatest of respect completely wrong. I have no assets, let alone R120million. I am currently unemployed, and I have not had a steady income for several years, I am currently living on the goodwill of friends, my brother and my elderly mother, I have depleted their resources as well."

This statement under oath was preceded by the following statements which contradicts his evidence in the aforementioned paragraphs made by him. (paragraph 15.1 and 15.2 of that affidavit):

"15.1 I intended to do business with certain parties on a marine tourism project in Seychelles. No sooner had myself and other persons with whom I had intended to do business with reached certain agreements, the members of the now defunct DSO approached them and took statements from them. In this regard I specifically refer to the statement of Charles Shapiro. I can equivocally point out that the defunct DSO and SARS investigators have attempted to tarnish my name so badly that there is no prospect of me ever being able to see this project through."

"15.2 Another transaction that I am involved with is the development of an airfield in Melkbosstrand. The party with whom I had an agreement was called in by members of the Criminal Task Team of SARS during 2010 and interviewed, and I am advised, interrogated for several hours. This resulted in the entire deal collapsing this year." (Referring to 2011)

In the Atlantis magistrate's court file handed in as EXHIBIT 11 is an affidavit dated the 8th of October 2011 by Mr van der 25 Merwe as part of his inter-pleading proceedings in that court, /DS

wherein he confirms that he is acting in his capacity as general manager for an entity called Executive Helicopters Swaziland (Pty) Limited. He has also confirmed in the proceedings in this court during his evidence that he is a director of the abovementioned company and has also confirmed the correctness of an extract from the website of this company dated 17 January 2012 which is EXHIBIT 12 herein, wherein he is described as its International General Manager. On his own admission he also acts as manager for both the Eagle Trust and ZM.

It is clear on the evidence before this Court that the first applicant is not unemployed.

Was the first applicant a Trustee of the Eagles Trust at the time when he launched this application and when he applied for legal aid assistance to LAB? In this regard the Full Bench pointed out (para 40) that in his letter of 6 August 2009 to the Legal Aid Board, Mr van der Merwe had stated that he was not the beneficiary of any Trust. However, according to the Trust Deed of the Eagles Trust, he was in fact the donor to the Trust, is a Trustee of the Trust and is both an income beneficiary and a residual capital beneficiary of the Trust. That Court found (para 40)

"Mr van der Merwe has made no disclosures with regard to the Eagles Trust and it is consequently not possible to know what the current assets of that trust are."

In paragraph 34 of his afore stated founding affidavit dated 22 July 2011 Mr Van der Merwe stated the following:

"34. Our family trust of which I was a donor in the amount of R100 (one hundred rand) many years ago, is the owner of 100 shares of R1 each in a company Zonnekus Mansion (Pty) LTD (ZM), the shares owned by the trust currently have little value as ZM has been crippled by the economy and the States conduct, I would not be entitled to any benefit from ZM or the Trust if it had any assets of significant value, I can state that at this time there is little or no value in the company or the trust."

The fact is that Mr van der Merwe was not only "a donor of R100 (one hundred rand) many years ago", he was always and remains, despite his inexplicable resignation on 7 December 2011, a Trustee of the Trust as demonstrated by Clause 4 of the Trust Deed (which is annexure J to the Section 3 B report, and annexure TVM 1 to the answering affidavit of LASA). Clause 11.2.1 shows that he is an income beneficiary. Clause 12.3.2 shows that he is the residual capital beneficiary.

Inexplicably, Mr van der Merwe persisted in denying that he is a beneficiary of the Trust. He repeated the denial yet again in paragraph 4 of his covering note to the supplementary information which he provided on 26 October 2011, wherein he stated the following:

"I have now resigned as a trustee and inasmuch as it has been alleged that I was a beneficiary (which is denied) I have included in my resignation a rejection of any benefit should I have been entitled to such benefit, which alleged benefit is hereby again denied."

His repeated denial is patently false, in the face of the explicit contents of the Trust Deed. He has never made any attempt to explain the contradiction between the Trust Deed and his denial, until after the evidence of the witnesses subpoenaed by this Court. He also stated the following in his replying affidavit (dated 23 October 2011, marked LAB 7)

"18. Inasmuch as it is contended that I was a beneficiary of the Trust, I have now resigned and forfeited any benefit which I may have been entitled and which benefit I state I did not in any event have, the value is in any event very little as has been explained in 17 above as well as in my two replies to the requests for further financial information made by LASA."

Mr van der Merwe did not explain how and when he "resigned" as a beneficiary of the Trust. Most importantly, Mr van der Merwe has not explained why he supposedly "resigned" as a beneficiary of the Trust. If he has indeed been a beneficiary, -and the Trust Deed puts that beyond any doubt, as the Full Bench found - then he has a claim to benefits from the assets of the Trust. He has some control over whether he receives such benefits, as he is himself a Trustee. If he has indeed "resigned" as a beneficiary, and if that is legally effective, he has deprived himself of access to the assets of the Trust. The question is why he would have done so if he is indeed, as he asserts, penniless.

The evidence more particularly the evidence tendered by the witnesses called by this Court, demonstrates that the Eagles Trust was established by Mr van der Merwe. He is a Trustee. The other Trustees are members of his family. He invited them to become trustees. The Trust Deed lists the beneficiaries of the Trust. Mr van der Merwe is listed as:

a) an income beneficiary, in terms of Clause 11.2.1; and

b) the sole residual beneficiary after the distribution event has taken place, and persons with vested and accrued rights had been paid out, in terms of Clause 13.3.2.

Mr van der Merwe renounced his benefits on 7 December 2011, while this application by him for legal representation at

State's expense was still pending, at a meeting of the Trustees, the first such meeting convened in years. The evidence demonstrates that although Mr van der Merwe also tendered his resignation as a Trustee at this meeting, the 5 resignation was not accepted. We shall deal later with the consequences of Mr van der Merwe's renunciation of his benefits in terms of the Trust Deed.

The following question to consider is: Does Mr van der Merwe 10 have any resources at his disposal or access to resources to cover and/or contribute towards, his legal fees? To answer this question requires a consideration of the position of the Eagles Trust and of Zonnekus Mansions (Pty) Ltd, which is owned by Trust, and the evidence presently before this Court. 15 As pointed out above, Mr van der Merwe maintains that there is little or no value in the Trust and Zonnekus Mansions.

We start with the Eagles Trust. As pointed out above the Eagles Trust was established by Mr van der Merwe. He is a 20 trustee. The other trustees are members of his family. He invited them to become trustees. The Trust Deed lists the beneficiaries of the Trust. Mr van der Merwe is listed as:

a) an income beneficiary; and

b) the sole residual beneficiary after the distribution event has taken place, and persons with vested and accrued

rights have been paid out. Mr van der Merwe renounced his benefits on 7 December 2011, while this case was pending. We first address the situation which existed before 7 December 2011. If the trustees had assets at their disposal, they were able to use those assets to make payments of Mr van der Merwe's legal fees. It is important to note in this regard that any such payments could be protected from claims by his various creditors. The trustees could resolve to make payments to his attorneys for legal fees only. That such assistance could be provided to him was confirmed by the evidence of Mrs Karen Greta van der Merwe, one of the Trustees , and Mr van der Merwe's sister in law. In that event, none of his creditors would be able to attach or obtain access to those funds. The Trust therefore provided a mechanism through which Mr van der Merwe could have his legal fees paid, notwithstanding the fact that he personally has various creditors.

Zonnekus Mansions (Pty) Ltd

The sole asset of the Trust is 100% of the issued shares in Zonnekus Mansion (Pty) Ltd ("ZM"). ZM owns various assets. The most recent financial statements of ZM were produced in evidence by Mr Reece, the auditor of the company. Mr Reece gave the following evidence which was not disputed: During the 2011 financial year, the assets of ZM were re-valued for the purposes of re-stating them in the company's financial statements. This was done on the basis to two reports by estate agents in the field. Mr van der Merwe obtained those reports and submitted them to Mr Reece. As a result of those reports, the land and building owned by the company were restated in the 2011 financial statements at R46.6 million.

The financial statements reflect the net value of ZM (assets minus liabilities) as R42.5 million. This was the evidence of both Mr Reece and Mr Stadler. The sole director, Mrs Cameron, signed the financial statements at the request of Mr van der Merwe. Both Mr Reece and Mr Stadler (the bookkeeper) stated that it would not be the truth to say that there is little or no value in the company. Their evidence is that the company is worth R42.5 million.

Mr Budlender on behalf of LAB submitted that the Court ought to find that the evidence shows that: (a) the Eagles Trust hold assets to the value of R42.5 million; (b) Mr van der Merwe was, at the relevant times both an income beneficiary and the residual capital beneficiary of the Trust; (c) Mr Van der Merwe was a trustee of the Trust, and the other trustees were family members whom he had invited to serve as such; (d) the trustees were in a position to realise the assets - whether at R46.6 million, or at some other substantial price; (e) the trustees were in a position to use the proceeds of those sales to pay Mr van der Merwe's legal fees or a substantial part thereof; and (f) Mr van der Merwe was in a position to influence the decision of the trustees in this regard, give that he created the Trust, he was the source of its assets, and he invited them to be trustees he was the key figure in its operations. This Court agrees with these submissions and finds accordingly. It is borne out by the evidence as summarized above.

We now turn to the events of 7 December 2011, when the Trustees had to consider and decide on Mr van der Merwe's resignation as both a trustee and beneficiary of the Trust. The minutes of the meeting of the Trust on that date, a day before the trustees were due to testify, reflect that they resolved not to accept his resignation as a trustee, but accepted his resignation as a beneficiary of the Trust. This was also confirmed by the subsequent evidence of the Trustees here in court.

Thus on 7 December 2011 Mr van der Merwe renounced his right to benefits under the Trust. He submitted that he was and is entitled to do that. He is correct, he is entitled to renounce these rights which he held in the Trust. But there are consequences flowing from that decision and the exercise of that right, which has a material impact on his application for legal representation at State's expense. He did so even though it had been pointed out in the Legal Aid Board's heads of argument on 31 October 2011 that if he deliberately impoverished himself in this manner, that would be sufficient to disqualify him from a claim to legal representation at State expense.

Despite this Mr van der Merwe went ahead and on 7 December 2011 renounced his benefits as an income beneficiary and as a residual capital beneficiary. According to the Legal Aid Board this is a deliberate act of impoverishment. It is clear however that Mr van der Merwe by renouncing his benefits in the trust created a situation in which the Trust was not able to pay his legal fees. He offered no adequate explanation for this. He was not able to dispute the reason that he had done this was in order to make it impossible for him to obtain the benefit from the trust.

This Court agrees with the submission by the Legal Aid Board that a man who has access to assets and resources cannot deliberately impoverish himself and then rely on his impoverishment to assert that the taxpayers should pay the cost of his legal representation.

This was implicitly accepted by the Supreme Court of Appeal in its judgment in the Porritt case where that court held the following, (paragraph 34 of the judgment):

"I have referred in some detail to the evidential material that served before Borchards, J because it illustrates, I believe, a complete lack of candour on the part of both Bennett and Porritt. Counsel for the LAB submitted that the respondents had deliberately structured their affairs in such a way as to facilitate the disposal or concealment of their assets. Whilst there is much to be said for that contention, it is unnecessary for this Court to go that far. Both Bennett and Porritt adopted an intractable attitude and for well on one year refused to furnish the LAB with information that was legitimately sought for the purposes of assessing their entitlement to legal aid. They eventually furnished information only after being directed by the court to do so. When they eventually did many of their responses were deliberately evasive and cagey. Each preferred to burden the LAB with the responsibility of ascertaining the extent of their interest in companies and close corporations. Other important disclosures were qualified by the words "to the best of my recollection" or "to the extent that I am aware of". And yet in each instance the information sought was peculiarly within their knowledge. That ought reasonably therefore to have redounded to their discredit."

Similarly according to this Court whilst there is much to be said for the contention by the LAB that Mr van der Merwe's actions in the above regard constituted a deliberate act of impoverishment it is not necessary for this Court to go that far. The fact is however that Mr van der Merwe did, by renouncing his benefits to the trust, impoverish himself in the midst of these proceedings where he is claiming indigence and as a result thereof the right and entitlement to legal representation at State's expense.

We now turn to a consideration of the quality of Mr van der Merwe's evidence. This Court has already referred to certain inconsistencies in the evidence of Mr van der Merwe which he had placed before us. The totality of the evidence now before this Court, more particularly the oral evidence that was led pursuant to the subpoenas issued by direction of this Court, shows overwhelmingly that Mr van der Merwe's evidence cannot be relied upon. This is so for the following reasons, as was also forcefully demonstrated by the submissions made by and on behalf of the Legal Aid Board. First, until the oral evidence was led Mr van der Merwe relied on the fact that his mother is the sole director of ZM. The truth however is that his mother has got nothing to do with the company, other than to sign documents which he places before her. He runs the company, he makes all the decisions for and on behalf of the company. She, that is Mrs Cameron, leaves it to him to run, as she has testified, to the best of his ability and as he pleases. Her attitude is that he can run it as he thinks fit. She is a director because he asked her to be such. When asked what is it that his mother actually directs Mr van der Merwe could come up with nothing at all. She is plainly there simply as a front or nominee. He admitted that he makes all the decisions with regards to the company. None of this was disclosed in his application to the Legal Aid Board or in the information which he provided to the Court, or in his affidavits in this application. It emerged only because this Court called his mother amongst others as a witness.

Secondly Mr van der Merwe repeatedly asserted that he was not a beneficiary of any trust, when in fact he was an income beneficiary and a residual capital beneficiary of the Eagle's Trust. He must have been aware of this. When he invited his brother, Robert van der Merwe to become a trustee of the trust he told him that he, that is first applicant, was a beneficiary of the trust. He was entirely unable to explain how he could honestly have told the Legal Aid Board and the Court that he was not a beneficiary of the trust when he had told his brother that he was in fact a beneficiary. He was asked how it could be that he did not know he is a beneficiary if he told his brother, he could not explain that. The conclusive proof that Mr van der Merwe knew that he was a beneficiary only emerged because this Court subpoenaed his brother, Robert van der Merwe, as a witness. If it had not done so no such evidence would have been available to the Court.

Thirdly Mr van der Merwe stated under oath that there is little or no value in ZM. He stuck to this version even after the financial statements and the unchallenged evidence of the witnesses were put to him. This claim is patently false. Even if it is possible to sustain this claim that the property is still over valued at R46.6million it is impossible to sustain his claim that there is little or no value at all in the company. If the property is worth only half of what it is reflected in the financial statements the company would still be worth more than R20million as correctly pointed out and submitted by and on behalf of the Legal Aid Board. Mr van der Merwe did not provide the Court with the financial statements of ZM or disclose that according to its financial statements it had a net value of R42.5million. He repeatedly asserted that it had little or no value. It was only because this court subpoenaed and called the witnesses Stadler and Reece as witnesses to come and testify that this truth emerged.

Fourthly Mr van der Merwe produced a summary table of the properties owned by Zonnekus Mansion, which purported to show the total value as R14million. Mr Van der Merwe knew at that time that the valuation or estate agent's report, which he had submitted to the auditors for the purposes of revaluation show that their value was in fact R46.6million. He did not disclose those valuations or their content to the Legal Aid Board or the Court. If the Court had not called Mr Stadler and Mr Reece as witnesses, the Court would never have known of this.

Fifthly, Mr van der Merwe handed in as evidence what he represented as a "CMA" report by Pam Golding, showing the value of the major property owned by ZM (Zonnekuz Mansion) as R7 465million. On cross-examination he admitted that the figures in question: (a) had not been produced by Pam Golding, and were not part of the Pam Golding report; (b) simply reflected the average price reached on the sale of six very different properties; and (c) did not purport to reflect the value of Zonnekus Mansion

Sixth, Mr van der Merwe stated in his reply to the questions posed by the LAB that the trustees had decided possibly to "forfeit" the Trust's shares in ZM. The evidence demonstrates, however, that it is unlikely to be true. The trustees never met to make any such decision, and none of them suggested that the matter had been discussed with him or her. It appears to be a fabrication. In any event, it shows an intent on the part of Mr van der Merwe that the Trust should (like him) be impoverished, so that he could claim a right to legal representation at State expense. His attempt to contend that by saying that the Trust might "forfeit" the shares, he meant that they had decided possibly to arrange for the shares to be distributed to the beneficiaries of the Trust, is inconsistent with the use of the word "forfeit" - but in any event also shows an intention to denude the Trust of value, so that he could claim to be impoverished and without access to resources. If the Court had not called the trustees as witnesses, it would not have known that the trustees had never met, and that is highly improbable that any such decision was ever taken by them.

Seventh, Mr van der Merwe gave himself interest-free and unsecured loans from the company, in the amount of R1,9million, over a period of two years. This was done in order to enable him to pay his accounts. Mr van der Merwe did not disclose this to the Legal Aid Board or the Court; he repeatedly claimed that he had no resources from which to pay his accounts. In fact, he has access to the interest free resources of ZM.

It is a matter for comment that Mr van der Merwe gave himself those loans without asking for the consent of the sole director of the company, or even informing her that he had given himself these loans. If the Court had not called Mr Reece and Mr Stadler as witnesses it would not have known of the existence of these substantial loans over a period of two years.

Lastly the Legal Aid Board put up as evidence an advertisement which show that the main property owned by Zonnekus Mansion had been advertised for sale at R39million. Mr van der Merwe's response to this was to attempt to have this evidence excluded on the basis that it was inadmissible hearsay evidence. This was despite the fact that the advertisement was attached to the papers and despite the fact as it turned out that the advertisement was placed at the instance of and by Mr van der Merwe himself. This was confirmed in her evidence by Ms Cameron, who not only confirmed that the property had indeed been advertised for the sale of R39million, but testified that it was Mr van der Merwe himself who had done so. Mr van der Merwe did not deny any of this during evidence here in Court. This Court would not have been aware of this if it had not called Ms Cameron as a witness.

This Court agrees with the submission made by and on behalf of the Legal Aid Board that all of this explained why there was a reluctance on the side of Mr van der Merwe to provide the Court with the names and addresses of auditors and trustees and directors so that they could be subpoenaed to give evidence.

It appears that he knew that if these witnesses were called, and they told the Court what they know and believed to be the truth, it would be demonstrated that no reliance could be placed on the various claims which he made on the documents placed before the Legal Aid Board, and the Court. It was submitted by the Legal Aid Board that Mr van der Merwe is therefore not only a person who has repeatedly made false statements to the Legal Aid Board and the Court, he has also not wished to assist the Court in finding the truth. For all these reasons, so the Legal Aid Board submitted, no reliance ought to be placed on Mr van der Merwe's evidence, except where it is confirmed by other reliable evidence. The Court agrees with these submissions.

Summary in respect of the first applicant

It is instructive that the Supreme Court of Appeal in the Porritt matter (referred to above) specifically refers to and uses the term 'resources' and not merely 'money' when it comes to a determination of the second leg of the postulated enquiry. The evidence before this Court demonstrates overwhelmingly the following with regards to Mr van der Merwe:

1. He presently holds various directorship positions in various companies referred to above, including in Swaziland.

2. He owns two helicopters in Sierra Leone.

3. He owns two helicopters in Swaziland.

4. He is a trustee of the Eagles Trust. Despite the renunciation of his benefits in the Trust, it is clear from the evidence of his sister in law, Karen Greta van der Merwe, and to a certain extent that of his mother, Fern Jean Cameron (nee van der Merwe), who are both current trustees of the Eagles Trust, that the Trust will indeed consider assisting him with his legal expenses, if and when necessary. As the evidence demonstrates, the Trust is indeed possessed of substantial assets.

5. On his own admission, and as was demonstrated throughout these proceedings, Mr van der Merwe not only has access to certain junior and very senior counsel practising in this division and their advices of which he mentioned a few names, but he also had the monies to mandate an~d authorise a running transcript of these proceedings, which presently runs into over 1200 pages already. These are indeed valuable and formidable resources available and accessible to the first applicant, Mr van der Merwe.

6. He live in a house on Woodbridge Island, Milnerton, bordering the Milnerton beach front, which is described in EXHIBIT 6 - the minute of the inspection in loco. The house is truly a mansion, in one of the most sought after residential areas in Cape Town. It is clear from the correspondence by Mr van der Merwe as well as the evidence on record that he uses this house as an office, with a personal assistant, fax machine, computer equipment with internet access. This is the house that was on the market for R39million.

7. He is also listed as the current sole director and shareholder of the company called Helicopter and Marine Services (Pty) Ltd (in Exhibit 9). As it stands Mr van der Merwe currently owns all the shares in this company being 1 000 000 shares. There was no evidence placed before this Court with regards to the current value of these shares, which could have been done by Mr van der Merwe, but which was not done. There was also no evidence and/or other information placed before this Court with regard to the financial status of this company, other than the mere allegation that this is a dormant company. No financial statements with regards to this company was placed before this Court. The evidence that is before this Court, as reflected in paragraph 17.2.4 of the Section 3B report, EXHIBIT 1, is that Mr van der Merwe has a R15million interest in this company. This apparently is in the form of a R15million loan advance by Mr van der Merwe to this company. According to Mr van der Merwe, he intends to write off this loan. He is of course at liberty to do so, but this does not detract from the fact that:

a) this is a substantial interest in this company;

b) he has legal remedies at his disposal to be used against this company to recover this loan amount, which on the evidence before this Court, he has not done;

c) this is a substantial resource at his disposal.

The above circumstances do not reflect a picture of an indigent man. It does reflect, to the contrary, a man with access to substantial resources, which could be used towards financial assistance for legal representation.

We now turn to Mr Kilian, the second applicant.

Mr Kilian did not testify nor did he call any witnesses to testify on his behalf in these proceedings, as is his right. He did however provide the LAB and this Court with documents regarding his personal circumstance, especially indicating the numerous debts that he has. He also volunteered information from the bar. Based on the information he provided to the LAB, they (LAB) reported as follows to this Court in the Section 3B report:

"In analysing the financial information provided by Mr Kilian up to this state, Legal Aid SA found the following inconsistencies or non-disclosures:

1. Mr Kilian has made no attempt to disclose any income which he may be receiving.

2. In terms of the 2009 and 2010 tax returns he had taxable income of R45 000 and R70 000 respectively.

3. From information received from his accountants the R45 000 was interest derived from his accountants, the R45 000 was interest derived from a company and R70 000 a thumb suck amount given by Mr Kilian.

4. In terms of a divorce order granted on 2 March 2009 Mr Kilian was to pay the sum of R250 000 on receipt of payment of his interest in Costa Atlantica (Pty) Limited and a further R250 000 on receipt of payment in his interest in Summer Symphony Properties 45 CC;

5. Mr Kilian has not disclosed the value of his interest in either of the aforementioned nor if such amounts have been received;

6. The above divorce settlement further records the transfer of immovable property situated at no 5 La Mer Sluysken Avenue, Hout Bay to be transferred form Silver Solutions 546 CC to his ex-wife;

7. The above has not taken place.

Details of assets owned and/or financial interest in any assets owned:

1. In his application for legal aid (LAB 4), Mr Kilian shows his net trust assets as R7.7million;

2. Both the Pony Ranch Trust and the Paul Kilian Family Trust own immoveable property;

3. The property owned b y the Paul Kilian Family Trust is run as a bed and breakfast;

4. The accountants of Mr Kilian have indicated that a rental income is derived from property owned by the Pony Ranch Trust;

5. Mr Kilian has failed or refused to disclose the income derived from these sources;

6. On 30 June 2011 Mr Kilian forwarded a letter addressed to his auditors resigning from Costa Atlantica (Pty) Ltd and Summer Symphony Properties 45 CC and Pure Platinum Property Holdings Limited;

7. This letter does not address the issue of either any shares or membership interest Mr Kilian may have;

8. Mr Kilian has further on record alluded to a franchise he started and expense in this regard without elaborating further;

9. Mr Kilian indicates that he has the following moveable assets namely Renault Clio (model 2001), Rexton and Mini Cooper motor vehicles.

Liabilities

1. Mr Kilian lists credit card debt in the amount of R257 000;

2. Seemingly this amount is accumulated over six credit cards;

3. It is difficult to understand how a person devoid of income or assets is able to qualify for this number of cards and/or accounts;

4. Mr Kilian further makes reference to several summonses issued for arrear bond instalments, electricity, water, rates and taxes and arrear payment on outstanding loans. It must be noted that information relating to these expenses may be outdated and require confirmation by applicant in court.

5. On perusing of the supporting documentation supplied by Mr Kilian it is apparent that actions are instituted by the creditors against either of the trusts or Silver Solutions 546 CC. With the exception of the ABSA 1 account, his liability in this instance is based on a surety signed by Paul Kilian on behalf of the family trust.

6. In his response dated 22 September 2011 Mr Kilian indicates that the total bond outstanding owed by Pony Ranch Trust

7. The total bond outstanding on the Paul Kilian Family Trust to ABSA 1 account R6 071 622 while the value of the property is R8million."

It must be pointed out at this stage that according to his accountant, Mr Pombo, the ABSA 1 account is an access bond account which had been accessed and used by Mr Kilian for his daily living.

"Funding of previous litigation

1. Mr Kilian has placed on record that during June/July 2011 he instructed Mr Booth to explore possible plea bargaining with the State and was able to give financial instructions in the amount of R15 000.

2. Mr Kilian further claims that the school fees of his two minor children at Redham effected in two payments of R29 000 and R14 985,05 during August 2011 was paid by a benefactor.

3. Of interest is the fact that the bank account details supplied of one of his children viz Lawrence Kilian has an opening balance as at 1 may 2011 of R25 678,84.

Ex-Spouse and children:

1. No further information has been supplied;

2. Mr Kilian did not provide the further financial information requested by Legal Aid SA in LAB 9 and LAB10."

In their written submissions dated 31 October 2011 the LAB referred to the written declaration signed and submitted by the second applicant, wherein he, the second applicant, declared that the total net value in respect of trusts, investments and savings is R8million. This means that after the deduction of R300 000 which is allowed by the LAB where there is fixed property and the applicant resides in the property, he shows a total net value of R7.7million.

In his application to the LAB dated 20 May 2011, LAB 4 of Section 3B report, which is the declaration which has been referred to, he stated that he is divorced and under the means test the following questions are asked: Do you have an income? Answer no.

Do you have any assets?

Answer no.

Are you employed?

Answer no.

Do you or any of your family control any company or trust or legal personality? Answer yes.

Do you or your spouse expect to receive any money or property from a deceased estate and are either of you beneficiaries of any trust?

Answer no.

Under gross monthly income he stated that there is no such income, and under assets as already been referred to, there's reference to the trust, investments and savings of R8million, leaving a net value of R7.7million.

Mr Kilian has also provided the LAB and this Court, after many

requests had been furnished to him, and many opportunities afforded to him by this Court to facilitate the provision of relevant information to the LAB, the information regarding the two trusts in which he is involved, namely the Paul Kilian Family Trust and the Pony Ranch Trust. He has stated in a note to the LAB dated 20 September 2011 that he is the trustee of both and that his children are the beneficiaries. However upon a perusal of the Trust Deeds of both Trusts it is evident that, in respect of both trusts: (a) he is both an income beneficiary an a capital beneficiary; (b) he is a trustee; and (c) he has control of the decision making process of the Trustees, who cannot make any decisions without his control.

The LAB is therefore correct in their submission that on his own version the second applicant is: (a) a trustee of both trusts; (b) he is both an income beneficiary and a capital beneficiary of both trusts, and (c) The trusts have a net value of R8million, which could be applied to the costs of legal representation for him.

This however was the position before the oral evidence was led in this court regarding Mr Kilian's present financial status.

After the oral evidence led in this Court in respect of the second applicant, it became clear that he, Mr Kilian did not disclose the truth in relation to his affairs in a number of respects. Two will be emphasised at this point: Firstly, he claimed that he is not a beneficiary of the Paul Kilian family Trust or the Pony Ranch Trust. In fact, he is a beneficiary of both. He could not honestly have believed that denial, given that: (a) he established the Trusts; (b) he told Mr Pombo, his accountant, that he was one of the income beneficiaries of the Paul Kilian Family Trust; and (c) every year, in his income tax returns, he reported income from the Paul Kilian Family Trust as an income beneficiary. He signed all of the tax returns, and knew that he was an income beneficiary of the Trust.

Secondly, he claimed that he had a 1% or 2% interest in Pure Platinum Holdings Ltd and Summer Symphony 45 Ltd. In fact, he had an approximately 12% share in each of these. The Court would not have known the truth if it had not called Mr Frymer, the auditor of those companies, as a witness.

Mr Kilian now claims that he has disposed of his interest in those companies. He has still not disclosed when he allegedly disposed of his interests; how he disposed of his interests; to whom he disposed of his interests; and what he received in return for his interests. His submission in Court during argument, that he gave it to his ex wife cannot be relied upon, since no evidence was led in this regards, and as such could not be tested, through cross-examination.

Mr Kilian told Mr Oates that he had transferred his shares in these companies. He did not indicate to whom he had transferred them. Mr Oates had the impression that it might have been to his Trust or to his son.

The Court is placed in the unfortunate position that it has not been given comprehensive and reliable information as to Mr Kilian's financial affairs. The reason for this is that Mr Kilian has put up misleading information, and has declined to give evidence. Similarly this submission in Court that he transferred his shares to his ex-wife, cannot be relied upon since no evidence was led in this regards, and it could not be tested through cross-examination. In fact according to Mr Frymer, he had no knowledge of such share transfer nor was this brought under his attention by Mr Kilian.

During his oral submissions in Court on 8 February 2012 the second applicant told the Court that he has transferred his interests in the abovementioned companies and the shares that he held in them to his ex-wife for the benefit of his children. The problem with this submission as correctly pointed out by Mr Budlender, on behalf of the LAB, is that this information cannot be relied upon since no such evidence was given under oath and hence it could not be tested by cross-examination.

The oral evidence also reveal the following with regards to the Paul Kilian Family Trust. The Paul Kilian Family Trust owns the property situated at 52 Hely Hutchinson Drive Camps Bay in which Mr Kilian and his family live, and on which he conducts a bed and breakfast business. Mr Kilian is a trustee of the Trust. His then wife (Mrs O'Donnell) was previously a trustee, but is no longer a trustee. Mrs O'Donnell never saw any books of account for the trust when she was a trustee. She never attended any meeting of the Trust, and never saw minutes of meetings of the Trust. He ran the Trust, and he was the decision-maker. He received the income from the guest house and paid the expenses. The business was run through his own bank account.

Mr Kilian's brother, Mr Peter Kilian, was not a trustee initially. He only became a trustee in 2009 after his brother, the second applicant asked him to become a trustee of both trusts. He too has never seen the Trust Deed. He does not know who the trustees are. He does not know who the auditors are. He has never seen any minutes or financial statements of the trust. He has never attended any meeting of the Trust, except a formal meeting at which he agreed to become a trustee. He says that Mr Paul Kilian receives the money on behalf of the Trust, and pays the expenses on behalf of the Trust.

It is clear that the Paul Kilian Family Trust is simply a mechanism through which Mr Kilian runs what are in fact his own affairs. All of the evidence shows that in reality he draws no distinction between the income and expenditure of the Trust, and his own income and expenditure. There is barely a veil to be pierced.

The Pony Ranch Trust is no different. One of the trustees was his then wife, Mrs O'Donnell. She was not even aware that she was a trustee of the Trust. She never had anything to do with the running of the Trust. And she never attended any meetings of the Trust.

It is plain the Trusts' assets are in truth Mr Kilian's assets. However, it seems that the Trusts are burdened with debt, in which Mr Kilian no doubt, played no minor role, especially in his position as the controlling trustee of both Trusts.

Mr Killian's other assets.

In addition to the Trusts, Mr Kilian has the following assets.

First, he has or until recently had approximately 12% of the shares in Pure Platinum Holdings Ltd. Pure Platinum Holdings Ltd holds all the shares in Costa Atlantics (Pty) Ltd. The shareholders net equity (assets minus liabilities) in Pure Platinum Holdings Ltd at the end of February 2009 was R8,38 million. His share of this equity was approximately 12 % of that, which is approximately R 1 million.

In addition, at the end of February 2009, Costa Atlantica (Pty) Ltd owed Mr Kilian R 345 000. On liquidation of that company, he would receive R0.90 or R0.95 in the rand. He therefore has value of approximately R 300 000 in Costa Atlantica (Pty) Ltd, besides his interest in it through his shareholding in Pure Platinum Holdings Ltd.

Secondly, Mr Kilian also holds (or held) 12% of the shares in Summer Symphony Properties 45 Ltd. The shareholders net equity at the end of February 2009 was R5,585 million. His 12% share of this would also be about R 1 million. It follows that Mr Kilian's net value in these companies at the end of February 2009 was approximately R2 million.

Other relevant considerations in his favour.

There are however certain outstanding claims which his ex wife, Mrs O'Donnell has against him arising from their divorce agreement, which this Court must also take into consideration. These claims are the following:

1. The property at 5 La Mer, Sluysken Avenue, Hout Bay. It is owned by Silver Solutions 546 CC, and is currently being transferred to Mrs O'Donnell. We have not taken this property into account in assessing Mr Kilian's assets.

2. 30% of the purchase price of the property at 52 Hely Hutchinson Drive, Camps Bay. It is owned by the Paul Kilian Family Trust. We have not taken this property into account in assessing Mr Kilian's assets.

3. R250 000 on payment of Mr Kilian's "interest" in Costa Atlantica Properties (Pty) Ltd. It is not altogether clear what this means. He does not own any shares in that company, which is owned by Pure Platinum Holdings Ltd. It might conceivably be interpreted as a reference to his loan account in the company, although this is not actually an "interest" in the company.

4. R250 000 on payment of his interest in Summer Symphony Properties 46 CC. We assume that this is a reference to Summer Symphony Properties 45 Ltd.

The second applicant's present financial status, based on the evidence before the Court can therefore be summarised as follows:

1. He is the true owner of the property which is held by the Paul Kilian Family Trust. There is little net equity in that trust. The property provides the income in which he and his family live.

2. He is the true owner of the property which is held by the Pony Ranch Trust. There is little net equity in that trust.

3. His shareholder in Pure Platinum Holdings Ltd and Summer Symphony Properties 45 Ltd, together with his loan account in Costa Atlantica (Pty) Limited are worth R2million.

4. On realisation of those shareholdings he would have to pay his ex-wife R250 000 or R500 000 of the proceeds.

It follows that if one totally ignores the value of the assets held by the Paul Kilian Family Trust and the Pony Ranch Trust, Mr Kilian has a net value of between R1.6million and R1.75million.

Summary in respect of Mr Kilian

He currently lives in a three storey mansion on the slopes of Table Mountain at Camps Bay, with a picturesque view over the Atlantic Ocean. He uses this house also as a bed and breakfast accommodation business. According to the available evidence he earns a monthly income from this business of between R20 000 and R30 000. Again there are no books of account, nor reliable audited financial statements regarding this business, which could and should have been produced by Mr Kilian. He did not do that. He also elected not to testify, as was his right. What this Court has learnt however, from what he has told the Court from the bar, is that at one stage, during these proceedings, the domestic worker working for him at this house, allegedly stole R20 000 cash which he was keeping in his safe at this house, at the time.

According to Mr Oates, his erstwhile business associate, Mr Kilian receives a management fee and interest from the other companies in which he, Kilian, is involved. No reliable information has been placed before this Court with regards to the nature and extent of this management fee.

As pointed out above, Mr Kilian had shares in these companies, which, according to him, he had transferred to his ex-wife. That information did not emerge during evidence by Mr Kilian, but in response to submissions made by, and on behalf of the LAB by Mr Budlender. This Court was, and remains, in the dark with regards to any agreement that was entered into between him and his ex-wife regarding these shares. The auditor, Mr Frymer, told this Court that there should be an agreement of transfer of shares in such an event, and that he in his capacity as appointed auditor of these companies should have been informed about such an agreement and given documentary proof thereof. He is not aware of such a share transfer agreement regarding Mr Kilian.

According to Mr Pombo, Mr Kilian's erstwhile accountant he, the second applicant, has an access facility on his ABSA 1 bank account of R6milion, which he, Mr Kilian, used to cover his current daily expenses.

It is not possible to put a precise value on the amount which Mr Kilian would receive if he liquidated the assets which have been referred to above. However, the undisputed evidence of the auditor, Mr Frymer, shows that it is clearly a substantial amount. The Legal Aid Board has acknowledged correctly that his shareholdings could not be liquidated overnight as these are private companies. Further it may not be possible for him to obtain payment of his loan account in Costa Atlantica (Pty) Limited in the short term. But what is the essence of the evidence regarding Mr Kilian before this Court.

It can be crisply summarised as follows: In his declaration to the Legal Aid Board, which has been referred to in LAB4, he has indicated that he has no income, he has indicated that he has no assets, he has indicated that he is not employed, he has indicated that he is not a beneficiary of any trust, he has indicated that he has no monthly income. As the evidence demonstrates, he is a trustee of two trusts. Mr Kilian has an income derived from his bed and breakfast. To date he has failed and/or refused to place any reliable information before the Court with regards to the nature and extent of that income. He has derived an income from his management of the properties of the companies, in the form of a management fee. Similarly no information was placed before this Court with regards to the nature and extent thereof.

He has assets on his own admission in extent of R7.7million, but in addition also in the form of shares and equity in the companies in which he was a director and in the amounts of approximately R1.7million. Mr Kilian is employed, he is self-employed as owner and manager of a bed and breakfast accommodation business in his house where he is living, which he is managing, as well as the other bed and breakfasts of the companies which had been seen and which had been inspected during the inspection in loco. He was, as pointed out, a director. He was involved in those companies as a director at all relevant times, until his resignation.

Mr Kilian is not only a trustee of both the Paul Kilian Family Trust and Pony Ranch Trust, he controls those trusts, and runs it as his own businesses. Mr Kilian is indeed both an income beneficiary and a capital beneficiary of both trusts and lastly, as pointed out above, he has indeed a monthly income of between at least R20 000 to R30 000. This Court has already referred to the fact that at one particular occasion Mr Kilian had R20 000 cash at his disposal which he kept in a safe and which according to him had allegedly been stolen by his domestic worker.

If any of these factual conclusions are not correct the only reason for that is that Mr Kilian has not stated the truth about his financial affairs, he has not made adequate disclosure with regards to his financial affairs, for example what has happened to the shares to which we have referred to and in general he has not taken the Court into his confidence. The Court must agree with the Legal Aid submission that Mr Kilian has treated these proceedings in a very dismissive manner.

Lastly we deal with the submissions and arguments advanced by both Mr van der Merwe and Mr Kilian, regarding the projected length and the costs of the trial. The figures and the length of this criminal trial as suggested by both the applicants, in excess of 12 years and running into tens of millions of Rands are purely speculative, based as it were on allegations or rather on alleged estimations provided by so-called experienced attorneys and counsel, none of whom came forward or were called by any of these applicants to testify on their behalf regarding these aspects.

According to Mr Damerell, one of the prosecuting counsel in this matter, the charges and allegations against both these accused are relatively straight forward and known to them for a long time. The witnesses the State intends to call are also far less than the 900 witnesses as suggested by these applicants, more particularly by Mr van der Merwe. The trial according to prosecuting counsel is likely to be concluded in three months, if not less.

In addition it is well known, borne out by experience, that a trial, especially a criminal trial, has its own peculiar dynamics, influenced by various factors, such as amongst others the nature of the charges against the accused in a criminal trial, the accused person or persons themselves, the prosecuting counsel or defence counsel, the investigation or the nature of the investigation, the investigating officers, the witnesses, the availability of courts and/or presiding officers, plea bargains, admissions made etcetera, all of which may individually or collectively impact in a material way on the length of a trial.

Given the facts and circumstances of this case, and in particular the submissions by the State, who has intimate knowledge of the case against both the accused, who are the applicants herein, this Court is not persuaded that it will take as long as the applicants would wish this Court to believe. We say so for, inter alia the following reasons;

1. Any or both of the accused may wish to enter into a plea bargain with the State. Mr Kilian has indicated that he has in fact paid an attorney an amount of R15 000 in legal fees to assist him in this case and in exploring that possibility;

2. The State may wish to withdraw the charges, or some of the charges against any or both of the accused;

3. The accused may wish to make admissions which may significantly shorten the proceedings;

4. Certain witnesses or evidence may not be readily available, or may not be necessary, which may also lead to the fact that the State may not call them and in turn might lead to the shortening of the proceedings.

We must say that this Court gained the distinct impression that both accused, the applicants herein, especially Mr van der Merwe, the first applicant, are doing everything within their means to stop the criminal trial from proceeding, by engaging in dilatory tactics such as bringing spurious applications, such as the one for my recusal, on the 11th hour of the day that this matter was set down for hearing this application by these two applicants for legal aid assistance at State expense.

The Court also points out in this regard that Mr van der Merwe has indicated at the beginning of these proceedings that he intends to bring numerous pre-trial applications for which he needs competent counsel. These applications include the following; for a stay of prosecution or to strike this matter off the court roll, challenging the NPA's authority to prosecute him, to prevent the Court from hearing this matter on the basis of mala fides on the part of the NPA/DSO, he would join accused 2's application for a separation of trials in respect of counts 1, 2 and 3, and to this extent he supports the application of accused 2; he wants to bring an application to compel full and better discovery; he intends to apply for the exclusion of evidence on the basis that it was unconstitutionally obtained evidence, his offices were broken into and certain documents were taken, and thereafter it was replaced again; he intends to apply for the appointment of an independent auditor; he needs expert witnesses to travel abroad to consult with witnesses. There was an application for mutual legal assistance on which he was not provided with any information. He also wants to apply to be able to film and record these whole proceedings.

Conclusion

This Court, on the totality of the evidence before us, and on the facts and circumstances of this case, finds as follows:

1. The recommendation of the second respondent in these proceedings, that is Legal Aid South Africa, as set out in the Section 3B report submitted to this Court on 28 October 2011 regarding both Mr van der Merwe and Mr Kilian, are sound in fact and law and accepted as such, by this Court.

To paraphrase the conclusion in paragraph [36] of the SCA in
the Porritt case (supra), which is equally applicable to both Mr van der Merwe and Mr Kilian, the applicants herein:

"The evidence and responses of the first applicant (read both applicants) fall far short of satisfying this Court that his (read their) personal circumstances are such that he (read they) do indeed qualify for legal representation at State expense."

In the circumstances this COURT DECLINE TO ORDER THAT MR VAN DER MERWE, THE FIRST APPLICANT, AND MR KILIAN, THE SECOND APPLICANT, BE PROVIDED WITH LEGAL REPRESENTATION AT STATE'S EXPENSE.

Given the conclusion we have reached in this matter there is no need to deal with the rest of the applicants' prayers as set out in their notice of motion as amended.

It follows that BOTH APPLICATIONS MUST BE DISMISSED.

It is so ordered.

MOSES AJ