Jailed former CEO Gary Porritt loses bid to privately prosecute Sars

Since his arrest more than 20 years ago, former CEO Gary Porritt has been using every legal route available to combat the more than 3,000 charges against him.

The 71-year-old former CEO of one-time listed financial services group Tigon, has been in jail since 2017. This, however, has not prevented him from appearing before 17 different judges in various applications and appeals. Earlier in 2023, judge Brian Spilg summarised this as “over a decade’s worth of Stalingrad defences”.

Porritt, and co-accused fellow executive Sue Bennett, launched another application earlier in March — this time, to privately prosecute SA Revenue Service (Sars) officials. 

Porritt, originally from KwaZulu-Natal, qualified as an accountant before going on to create or head up various companies. The National Prosecuting Authority (NPA) accuses Porritt of false profit creation in Tigon and Shawcell, both JSE-listed companies he headed.

In their latest court attempt, Porritt and Bennett attempted to start a private prosecution against Sars. But, judge Anthony Millar of the high court in Pretoria, dismissed the urgent application earlier in March. 

According to Porritt, Shawcell was liquidated in June 2003, which was a consequence of Sars’s income tax assessments, to the sum of almost R163m. Bennett was a director of another company (also in liquidation), whose shareholders’ entire investment was in Shawcell.

Millar, in his judgment, summarised Porritt and Bennett’s claim against Sars as follows: The applicants lay the blame for the failure of these commercial endeavours on the Sars assessment and specifically the persons they believe contrived it.”

In 2005, Porritt laid charges against the Sars commissioner and leader of the audit team.  

In August 2006, Porritt then engaged the director of public prosecutions (DPP) in Pretoria. The frustrated former CEO said the DPP had “no intention of treating this matter with the priority that it deserves”, and thus would sweep it under the rug.

However, despite laying charges and following up in August 2006, the judge noted there was no further follow up.

Now, about 18 years after he laid charges in Pretoria, Porritt and Bennett addressed a letter to the national director of public prosecutions (NDPP), requesting a nolle prosequi certificate by no later than February 17 2023.  

A nolle certificate is issued by the NPA when, after a complainant has laid a charge (usually at a police station), the NPA decides not to prosecute the accused person. This certificate allows the complainant to institute private prosecution proceedings, if they are able to pay for all the necessary legal fees. If successful , the end result is the same as if the accused had been prosecuted by the NPA. 

The Criminal Procedure Act states the right to prosecute any offence — other than those referred to in specific provisions — lapses 20 years after the offence was committed. Sars’s alleged offences occurred on March 17 2003. This means the time to institute proceedings would be March 16 2023 at the latest, hence the case's urgency.

The only way for Porritt and Bennett to start their private prosecution is with a nolle certificate. This can only be provided once the NPA decides not to prosecute.

The decision to not prosecute Sars was reached in November 2009. The investigating officer, in papers before Millar, indicated it was standard procedure to inform complainants about such a decision, but she does not recall speaking to Porritt directly though she “must have” spoken to Porritt’s spokesperson.

The docket was finalised and filed in 2010. No-one inquired about it, according to the officer, until she was contacted earlier in 2023. However, due to the length of time, the docket was most likely disposed of, even after a “diligent search of our storage facility”.  As Millar later noted, it is this factual detail that proves fatal to Porritt and Bennett's case. 

The Criminal Procedure Act states that before a certificate can be issued, a prerequisite is that it is “signed by the [NDPP indicating] [she] has seen [papers] on which the charge is based and that [she] declines to prosecute at the instance of the state.” This is the final confirmation the state declined to prosecute. 

Since the decision to not prosecute occurred in 2009, Millar noted that “A certificate could have been requested at any time from then.” None was, and the docket is now no longer available.

As a result, the NDPP cannot have regard to its contents, which is a legal requirement prior to the issuing of a certificate. As a result, "[if] a certificate was issued ... the certificate would not comply with [the Criminal Procedure Act]….”

Millar also took issue with how long Porritt and Bennett had taken. However, dilatoriness is not inherently fatal to obtaining a certificate. Millar noted: “Dockets can be reconstructed and then resubmitted for consideration.” The problem was that there was less than two weeks to go to the deadline to bring proceedings. 

The judge ruled that “It is not possible ... for the NDPP to issue a certificate that complies with [the Criminal Procedure Act] and, accordingly, the application must fail.”

moosat@businesslive.co.za