Why does Tigon-accused Sue Bennett get anxiety attacks when she cross-examines the accountant Grant Ramsay who turned state witness, and how do they impact her fair trial rights? Is she actually malingering as part of her and co-accused Gary Porritt’s ongoing Stalingrad strategy?
These are the questions Judge Brian Spilg grappled with before he gave Bennett a breather, ordering Porritt to resume his cross-examination of his former colleague when the trial resumed earlier this month.
Spilg issued the reasons for his decision a few days ago.
Porritt and Bennett have been on trial since 2016 and the proceedings have been subjected to numerous delays – among others, due to applications and appeals brought by the accused. The court has spent many days deliberating on matters relating to the health of both elderly accused.
They are facing more than 3 000 charges including fraud, racketeering and contraventions of the Income Tax Act, following the collapse of listed financial services group Tigon, around 2002.
Before its collapse Tigon was considered the best-performing stock on the JSE, but according to the state it was all a house of cards. Porritt was the CEO and Bennett, his romantic partner, was a director of several of the group’s companies. The pair were arrested in 2002 and 2003 respectively.
They are representing themselves and Porritt has been incarcerated since June 2017, after he failed to appear in court while on bail.
Setting out the reasons for his order, Spilg said it was necessary to ensure the cross-examination of Ramsay is not delayed. That was why he ordered Porritt to resume his cross-examination, after which Bennett will continue with hers.
At that stage there was an existing order for Bennett to provide information from medical practitioners about her anxiety attacks and the medication she is on.
Spilg describes how Bennett’s involuntary shaking and convulsions started in May 2021.
She initially said she was trying to control them with medication and indicated that the attacks did not occur during Ramsay’s evidence in chief. She also said travelling between her home in Knysna and Johannesburg, where the court is situated, increased her stress and she therefore made arrangements to relocate to Johannesburg.
Spilg considered and discussed with her and the state the possibility of sending her for observation to determine why she suffered the attacks, whether it was related to over- or under-medication, whether the attacks can be controlled, and whether she was able to conduct the cross-examination despite them.
“This would also establish whether she was exaggerating the sequelae [condition] and using it to malinger,” Spilg stated. (Malingering is faking or exaggerating illness for personal gain.)
The court sent her for a physical examination and psychiatric interview at Sterkfontein hospital on 14 November. The doctor who examined her found that a psychiatric condition, which may impact her ability to stand trial, could not be excluded and recommended further observation, examinations, and assessments as an in-patient. The waiting period for such observations is however nine months.
Bennett raised a concern that if she was found unable to conduct her own defence it would amount to a conviction. Her position was that she understands the proceedings but could not conduct a proper defence.
Spilg then ordered her to produce medical evidence by 30 November relating to her anxiety attacks, the medication she takes for them, and anything else the medical practitioner my consider relevant – failing which she would have to give reasons why a legal aid lawyer should not be appointed to represent her in the trial.
Both accused have previously refused to make use of the legal aid that was available to them.
The order also provided for Porritt to continue with his cross-examination when the trial resumed in January, should Bennett not be ready to do so.
Bennett did not obtain such a report and made it clear that she would not do so in the near future.
Porritt and Bennett objected to resuming his cross-examination. Porritt argued that his fair trail rights would be affected because he did not have enough time to prepare and could not prepare properly in jail since the facilities were inadequate, but this was rejected by the court.
According to Spilg, Bennett actually wanted an indefinite postponement of the trial.
He pointed out that the trial started many years back and there was no reason for the accused not to “have their ducks in a row if they were serious about exercising their fair trial rights as opposed to adopting over a decade’s worth of Stalingrad defences with relatively little engagement over that time on the merits of the charges”.
He said the state is prejudiced by unnecessary delays and Ramsay could not be expected to wait indefinitely for his cross-examination to be completed.
Spilg said Bennett’s medication must be assessed with regard to her anxiety attacks, as must the consequences of such attacks when preparing or conducting the cross-examination.
“To date there has been no difficulty in Bennett drafting court papers or preparing written argument,” he pointed out.
He said the court must be in a position to determine if she should get legal aid assistance, but cannot run the risk that the attack may affect her ability to cross-examine as she alleged.
Porritt was therefore ordered to take over the cross-examination and Spilg gave Bennett until 1 March to submit medical evidence if she contends that the ‘conversion disorder’ that she earlier raised affects her ability to defend herself.