Johannesburg — ONE of SA's biggest fraud cases looks set to hit another delay because the accused, Gary Porritt and Sue Bennett, have launched a Constitutional Court challenge on the quality of representation they will receive from Legal Aid SA.
They are afraid the counsel they get will be "mediocre" and not familiar enough with accounting to provide the sort of defence they believe they need.
Former Tigon CEO Porritt and company director Bennett say the maximum fee under the Legal Aid guide will not attract legal practitioners with sufficient expertise and skill to defend them properly and effectively. They face 3200 charges, and deny the allegations including fraud, money laundering, Companies Act violations, racketeering and theft.
The South Gauteng High Court in Johannesburg ordered in January that Legal Aid SA provide Porritt and Bennett with two legal practitioners each at the maximum fee payable in terms of the Legal Aid Guide, which is R3012 per advocate a day.
The two want the Constitutional Court to overturn the High Court order, and to tell Legal Aid to pay more for the lawyers who will represent them.
In their affidavits, Porritt and Bennett said the implementation of the high court order would lead to an "inequality of arms", which meant that one side, the state, would have better legal representation than they would. This, they say, is contrary to the principle of a fair trial.
"A right to a fair trial includes a right to have a legal practitioner assigned to an accused person by the state and at state expense, if substantial injustice would otherwise result," Bennett said in her affidavit filed with the court late last month.
They said they did not seek to have counsel of their choice appointed to represent them.
They wanted to ensure that the counsel appointed were appropriately competent and effective, with recognition given to the complexity and magnitude of the case.
Bennett said that since Porritt's arrest in December 2002 and her arrest in March 2003, they were legally represented by their own counsel in the state's case against them.
"However, at the end of May 2007, after the expenditure of some R23m on legal fees, the funding which had kept us going for some five years ceased."
Bennett said the trial court had no illusions about the quality of counsel Legal Aid SA would provide.
"The court noted that the likelihood was that we would find ourselves stranded with mediocre advocates with little experience who would be prepared, because of the smallness of their practice, to saddle themselves with a trial that will last three or four years in order to obtain a regular small income, and that such counsel would definitely not have accountancy ability, which would be a requirement for a proper understanding of our criminal case."
She said the fee parameters issued by the General Bar Council in October 2005 recommended daily fees for senior counsel acting in high court criminal matters of R12000 to R21000 a day with junior counsel earning R3600 to R15000 a day.
This was a far cry from the maximum that could be earned in terms of the Legal Aid Guide.