Mendelow is testifying for the National Prosecuting Authority (NPA) against Breytenbach.
Mendelow, who is under cross-examination by Breytenbach's advocate Wim Trengove, claimed on Wednesday that an affidavit he was questioned on, on Tuesday, had not been part of the court record and that it had been "planted" after the fact.
However, following a short adjournment it was established that the affidavit had in fact been part of the court record, as it was marked in the index as an annexure to another affidavit. Mendelow conceded: "It appears that it is there. It is not annexed to the answering affidavit, I don't know how it came to be."
To which Trengove shot back: "Are you now saying it was before the court? Yes, indeed [you are]. Your insulting accusation was completely false. This business about planting was nonsense. You are giving evidence under oath. You have accused senior lawyers and senior police of planting evidence. That is a very serious accusation." Mendelow was forced to acknowledge his error to the hearing, following his discovery that the affidavit had in fact been annexed in the court record to the affidavit and filed by Mendelow himself.
Trengove noted Mendelow's apology before having the last say: "What I am canvassing now, is the care you take before you make serious allegations."
Breytenbach was suspended in April last year by the NPA, following a complaint by Mendelow and Imperial Crown Trading (ICT) that she had shown bias to their rival Sishen Iron Ore Company (Sioc), a subsidiary of Kumba Iron Ore, during a fraud investigation into ICT.
Breytenbach has maintained however, that she was suspended because she was involved in investigating suspended crime intelligence head Richard Mdluli - a claim the NPA have denied.
Sioc and ICT have been at loggerheads over a prospecting right to mine 21.4% of the Sishen iron ore mine in the Northern Cape since May 2009. The department of mineral resources granted the rights to ICT - which Sioc took to court in a review application and won.
Following this the two were involved in lodging criminal complaints against one another.
This week Trengove noted during Mendelow's cross-examination that the "charge against Breytenbach is that she took the one accusation [Sioc's] seriously and not the other (ICT's). I am trying to demonstrate it was a very serious allegation, whereas the complaint against Sioc was based on very flimsy evidence and it was absurd. There is evidence in substantiation of fraud committed by ICT ... there was an abundance amount of evidence that the department officials were involved in ICT's application," Trengove said.
The allegation against Sioc relates to a complaint made by the department of mineral resources that Sioc had lodged its prospecting application early. The rights to the mine were up for grabs following the cessation of old mining rights, which had belonged to ArcelorMittal (Amsa) up until April 30 2009, thereafter the 21.4% was fair game - both ICT and Sioc are fighting for the stake.
Applications for the rights could only be lodged after midnight on April 30, 2009. However, May 1, was a public holiday, therefore the only day for the applications to be processed was Monday, May 4. Whichever of the companies lodged their applications first would get the rights, while if they both lodged at the same time, the company with more BEE credentials would win - in this case ICT trumps Sioc in terms of its BEE ratings.
Sioc handed their application in on April 30, following an agreement it had with the department of mineral resources officials in Kimberley, who would stamp the form on May 4, although it had been processed on May 1.
ICT and the department have alleged that Sioc had acted fraudulently when it lodged its application early, while at the same time it had "misled" department officials on when to date-stamp its application. Trengove noted earlier on Wednesday however that in the Kimberley record the department informed Sioc that it's application was competing with another application, which had been lodged on the same day, regarding rights over the same land. Trengove noted: "What we know that meant was, that Sioc was informed that their application had been accepted as having been received on Monday, 4 May. So ICT's application was also treated as having been received on Monday May 4. Both were being treated as having been accepted on Monday 4 May. So, what these documents make clear is that the department treated Sioc's application as received on May 4, and not that it had been received on May 1," Trengove told Mendelow.
The counter-complaint against ICT is related to an allegation from Kumba and Sioc that ICT connived with department officials to ensure their application was captured on the department’s system on May 4 2009, but that in reality its application was incomplete at the time. Forged copies of Kumba’s title deeds were found in ICT's application and Sioc maintains that ICT took copies of the title-deeds from their application and forged them to make copies for their own application. While ICT's counter-claim alleges that Sioc was responsible for making the forgeries and placing them in ICT's application in order to "later falsely implicate ICT and thus ensure its failure [in its application].
Trengove pushed Mendelow on his assertion that Breytenbach had neglected to carry out her duty in line with the prosecutorial code of conduct. Trengove said the code "imposes the duty on a prosecutor to expose a commission of an offence, only if the prosecutor is of the opinion that there is a crime committed".
Trengove continued, "Breytenbach was of the opinion that no commission of an offence had been exposed [in terms of Sioc's application]. Then you can only accuse her of a negligent opinion."
Mendelow responded, saying: "She had a duty to investigate and to see to it that it was investigated.
"You remember that you said that the department's complaint against Sishen 'disappeared off the radar screen', Mr Mendelow? And that Breytenbach should have allocated that case to herself?" Trengove asked.
Mendelow answered that Breytenbach didn't "necessarily" have to allocate the case to herself, "but she had done so with the ICT case. She ought to have coordinated the investigation."
Trengove fired back, asking Mendelow, "Why do you present yourself as an expert on how a prosecutor should carry out their job?"
Mendelow replied: "My complaint complied and fell square within the prosecutorial codes, the essence of our complaint was foul of these standards." Trengove pointed out to Mendelow that police officers are the ones who bring cases to prosecutors and "not the other way around".
Mendelow did not give in, saying: "If you are aware of a complaint which is inextricably woven up with another case you are investigating, then it is incumbent upon you to investigate that too. It is plain common sense, based on the code. You must be savvy and investigate that, and act impartially."
Earlier Trengove had put it to Mendelow that the department of mineral resources only laid a criminal complaint against Sioc in August 2011: "That is more than two years after the event. When did it first allege fraud?" Trengove asked Mendelow, who said: "I think it was November 2010."
"That would still be more than a year and half plus since when the alleged fraud happened. And yet they had all the facts at their disposal all along, they seem at best to be a reluctant complainant," Trengove replied.
Cross-examination of Mendelow continues.