Breytenbach inquiry chair says forced recusal is 'nonsense'
The hearing was postponed indefinitely last week when chairperson Sandile July recused himself, but only after slamming the NPA's reasons for asking him to step aside as "nonsense".
The Mail & Guardian understands from sources close to the case that the decision to bring an application for July's recusal was preceded by "a serious fallout behind closed doors" over whether the attorney could be accused of bias. The NPA brought its recusal application last week on the basis that July's position at Werksmans Attorneys might create a perception of bias.
Werksmans represents steel giant ArcelorMittal South Africa (Amsa) in matters relating to the ongoing rivalry between Imperial Crown Trading and Kumba subsidiary Sishen Iron Ore Company over a 21.4% stake in the Northern Cape mine.
Breytenbach is facing disciplinary charges for her alleged bias towards Sishen during the prosecution of a fraud case against Imperial Crown Trading in which Sishen is the complainant.
Difference in opinions
The M&G was told that lawyers for the NPA "had a difference in opinions" regarding the recusal application, with some wanting it to be brought immediately after concerns were raised by Imperial Crown Trading lawyer and NPA witness Ronnie Mendelow at the start of the inquiry on July 23.
Others agreed with July and Breytenbach's legal team that the basis of Mendelow's complaint was "far-fetched".
The final decision to bring the application followed an instruction last Thursday from acting national director of public prosecutions Nomcgobo Jiba, who was allegedly "concerned" after receiving a letter from Mendelow more than three weeks previously, on July 24, in which he raised the issue.
The M&G was told that Jiba "was not comfortable about July chairing" the proceedings after having several meetings with the NPA's lawyers in which she was briefed on the case.
In response to questions from the M&G this week, Mendelow confirmed that he had met Jiba last Thursday, but said he "did not speak to her at all about the recusal application".
He also said Jiba "did not act" on the July 24 letter, which "Imperial Crown Trading and I abided by".
Part of the NPA's rationale for July's recusal was based on Mendelow's contention "about the chairperson's alleged involvement or links with Amsa/Kumba".
July rejected this, however, saying: "It is correct to say Werksmans represents ArcelorMittal, but I don't know the details of the matter between Arcelor, Kumba and Imperial Crown Trading."
In a surprise move, the NPA announced its plan to bring the application after July had heard evidence for 10 days, despite earlier assurances that his position at Werksmans was not a concern. July questioned the NPA's motives and lambasted the application, calling it "nonsense" and "factually inaccurate".
The NPA declined to comment further this week.
July suggested that Mendelow, whose complaint had formed the basis for the investigation of Breytenbach, was directing the NPA's disciplinary process.
He contended: "I hope this hearing is not going to be controlled by people who happen to be controlled by the complainants who tell the NPA how to run the hearing."
July laid the blame for the recusal application at the door of Mendelow, who has denied exercising any influence over the hearing.
Mendelow, who criticised July for his "gratuitous and uncalled-for attack", also denied having anything to do with drafting the NPA's affidavit used in its application for July's recusal.
The affidavit attempts to explain why the NPA took so long to raise the conflict-of-interest contention by claiming that it "was not going to raise the issue until there were adequate facts that support the allegation".
But the NPA then claims it was "inundated with inquiries from the media on whether the chairperson indeed had links with Kumba".
"The NPA was not prepared to engage with the media on the issue, especially based on allegations that the NPA wanted to verify," it said in the affidavit.
The allegations, according to the affidavit, were verified shortly thereafter, when "information came to light that indeed Werksmans is the attorney of Amsa. This came from, among others, the evidence of Mendelow."
The NPA argued that Mendelow's evidence confirmed that Amsa "has a close business relationship with Sishen".
And in what seems to contradict its earlier reasoning in the affidavit, the NPA said that because Amsa is a "substantial client of Werksmans, it does not matter whether the chair was aware of it or not. The moment he became aware of it, he was duty-bound to recuse himself."
Several observers have queried the logic of the NPA's application for July's recusal, pointing out that Imperial Crown Trading itself had a deal in place with Amsa over Sishen, which only fell through when Amsa failed to earn shareholder approval.
Breytenbach, who was suspended on April 30, has maintained all along that Jiba moved against her in an attempt to stop her from prosecuting former crime intelligence boss Richard Mdluli.
Her suspension happened a week after she informed Jiba that she would seek a judicial review of the decision to withdraw fraud charges against Mdluli.
The NPA denies this and claims her suspension followed an investigation sparked by Imperial Crown Trading and Mendelow's complaint in October. Mendelow accuses Breytenbach of collaborating with Sishen advocate Michael Hellens SC in drafting affidavits used in a search-and-seizure warrant application to raid the company and the Kimberley offices of the mineral resources department in July last year.
* Got a tip-off for us about this story? Email [email protected]
The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.