The proceedings in Court 17 of the South Gauteng High Court in Johannesburg on 4 May began with a bit of banter between Judge Brian Spilg, and the second accused in the case before him, Ms Susan Bennett.
Bennett told the judge she received a call from a friend asking if she had seen an article in the “current [May] Noseweek” – a magazine, she pointed out, that she does not read.
Judge Spilg: I am not prepared to disclose when I last read Noseweek , but it was a long time ago. And I did enjoy them…
Bennett: Well I never subscribed, but I was told on one occasion that it referred to Mr [Gary] Porritt [her co-accused in the case before court] as ‘Horrid Mr Porritt’ [nose65], so I refused to buy them.
Spilg: Their rhyming skills seem to have left them.
Then the banter was over and Bennett moved on to the more “difficult” matter arising from a Noseweek article that had been brought to her attention. She felt it was only fair to also bring it to the judge’s attention.
Bennett: They printed an article which referred to an affidavit I had put up many years ago to [then head of the NPA] Advocate Vusi Pikoli – it has appeared in various court papers since then. It had a list of SARS defaulters or taxpayers [attached to it]. You might recall having seen it in the [document] bundle that has [also] been placed before you.
Judge: I have seen something that identified a number of persons. I did not think it came from Noseweek. Carry on.
Bennett: They printed an article that referred to my affidavit and they printed excerpts from the SARS list attached to it. I have brought a copy with me.
Judge: Do you want me to see it?
Bennett: I do want you to see it, M’Lord, because of something that I have never noticed before. It was pointed out to me when I received this phone call that the list reflected … is reported to be a tax defaulter with R3.661 million. It says Bâ€†S Spilg.
Spilg: For how much?
Bennett: R3.661 million. I believe …I do not know how many other Bâ€†S Spilgs there are, but I believe I should bring it to Your Lordship’s attention. I have got a copy of the Noseweek for your Lordship.
Judge: I am totally unaware of that.
Bennett: I must ask your Lordship to declare whether that is in connection with you or not?
Judge: No, it is clearly wrong. I am an up-to-date taxpayer.
Bennet: This is from back in 2002 M’Lord.
Judge: It would never be. My tax affairs are up to date. I have never done any side deals with anybody or asked for anything …In fact I get angry because, despite being given documentation, they take over a year at times to refund me; my refunds are generally over R100,000-a-year since becoming a judge. What year do you say it was?
Bennett: It is just a list generated by SARS, listing defaulting taxpayers, and at the top of the list is Dave King for a huge amount. [She goes on to explain that she had appended the list to her early affidavits as it evidenced the tax debt of another person featuring in their case: Gavin Varejes, who was number 3 on the list.]
Judge: Where do I appear?
Bennett: No. 30 on the list is Bâ€†S Spilg.
Judge: Bâ€†S Spilg? Well that is my initials, that is me.
Bennett: Yes, M’Lord.
Judge: I think it is time to make inquiries then. It could explain why it takes so long for me to get refunds.
Bennett: It could do, yes.
Judge: Okay, but thank you, I appreciate that.
Shortly before the court adjourned, later that day, Judge Spilg returned to the matter of the SARS list that had appeared in Noseweek.
Judge: It has been raised in open court that I am supposed to be some defaulter in SARS’s list, and [addressing the lead prosecutor, Advocate Etienne Coetzee SC] since you are representing SARS, I want to know by Wednesday next week: am I on a list, or am I not on a list, and I want it in open court.
Coetzee: M’Lord, we are not representing SARS…
Judge: You are getting paid by them. Ms Bennett raises things for a reason. That reason may well be that somehow or another I may be compromised. How did my name come up in the public domain? […]
Bennett: [The list] is an attachment to an affidavit I did, I think in 2007 or earlier, at the request of Advocate Pikoli…
Judge: Well, I am not sure I can proceed with a matter of this nature if there is a suggestion …either something in my tax is compromised or not. I need that clarified by Wednesday. As far as I am concerned my tax is up to date and at no stage have I ever been in a situation where a figure of that nature was ever an issue. Whether it is false information that is being spread or not, I need that sorted by Wednesday.
Coetzee: M’Lord, we will bring it to SARS’s attention but with the limited facts that I am aware of, that internal SARS document was never meant for public dissemination. It is a document that was unlawfully obtained from SARS’s records and attached…
Judge: It is in the public domain.
Coetzee: I am not disputing that now.
Judge: Well then I need that thing sorted out. I am not going to proceed in a matter where SARS contends that I at some stage owed them R3.5 million. And that has not been resolved[…] Do you not see what the potential is?
Coetzee: M’Lord if I could just address you …
Judge: Yes, sure, but you can see how upset it makes me now.
Coetzee: I understand, but all I can say is the document was unlawfully obtained and disseminated by Ms Bennett, not our revenue authorities. [How Bennett obtained the document is explained in the “Naughty List” story in nose223.] I will bring it to the attention of SARS’s legal section and tell them they must have a representative present on Wednesday.
Judge: If it is in the public domain SARS must sort it out publicly. Do you follow where it leads to? It leads to a suggestion that somewhere or another my tax affairs were compromised to a point where I cannot deal properly with a matter where SARS itself has laid significant charges of tax avoidance.
Coetzee: The way I understand it, [the list] has got to do with outstanding tax debts, and nothing else.
But be that as it may, SARS must satisfy Your Lordship as to why…
Judge: …(a) my tax affairs are in order and (b) that at no stage have I sought to compromise any tax issue between SARS and myself in any way other than an open way.
Ms Bennett, you will need to explain why you did this in open court.
Judge: Whether there is a motive to it? It could have been done in my chambers… You know, the press, they are here.
• Which leaves it to Noseweek to pose the question: How did Judge Spilg’s name appear as No. 30 on SARS’s internal list of its top 200 debtors? And how was it “sorted out”?
• Come Wednesday, no representative from SARS arrived to testify. Instead the Judge announced that there was no need. No explanation was required of Ms Bennett.
• Noseweek had not identified Judge Spilg’s name on the list when we published it and have a reader to thank for bringing it to our attention.
• Gary Porritt was arrested on 14 December 2002; it took the state until 29 July 2005 to produce an indictment. The case was transferred from the magistrate’s court to the high court in 2006. The next ten years passed with a few procedural applications and endless postponements, most of them requested by the state prosecutors. The actual trial began on 5 September 2016. Sixteen years down the line, the case is not nearly done. Noseweek has launched a major investigation into the conduct of the case, and SARS’s role in it. We will report fully in due course.
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