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NPA claims Breytenbach ‘deleted evidence’ from laptop

"A forensic report … found that certain evidence was intentionally destroyed and deleted from the laptop," said NPA integrity management unit acting senior manager Hercules Wasserman.

Wasserman told the hearing at the NPA offices in Silverton, Pretoria that his unit had set up a meeting with Breytenbach on February 7 to collect her laptop.

Her attorney Gerhard Wagenaar attended the meeting and they agreed that Breytenbach would be allowed to make a mirror copy of her hard drive to protect her rights, and would hand over the laptop later that day.

Wagenaar instead sent the NPA a letter in which he said they would hand over the computer only when certain conditions had been fulfilled.

"The laptop is the property of the NPA and no employee has the right to issue certain ultimatums," Wasserman said.

Breytenbach allegedly wanted more information on the charges against her and was concerned about the privacy of information on the laptop.

Sensitive nature
Breytenbach then apparently went on leave for about a week, leaving the laptop with her attorney.

Wasserman said Breytenbach did not inform him she was going on leave or inform him of the whereabouts of the computer.

It was of serious concern that an NPA laptop was in the hands of a third party, especially given the highly sensitive nature of the information on it relating to high profile cases, Wasserman said.

Once Breytenbach returned from leave, her attorney still refused to hand over the laptop until her conditions were met, and later offered to return it only once all the information on it had been deleted.

"[This] would amount to the destruction of information that belongs to the NPA," Wasserman said.

Wasserman's unit was given the mandate to investigate Breytenbach in December last year. This followed a complaint lodged against Breytenbach by ICT lawyer Ronnie Mendelow, who wrote to the former director of public prosecutions Menzi Simelane in October 2011.

According to Wasserman, Wagenaar raised various concerns regarding the details of the NPA's investigation against Breytenbach and documentation relating to Mendelow's complaint.

Seeking clarity
Wasserman testified that he explained to Breytenbach and Wagenaar that he could not provide them with that information and they should rather seek clarity from the NPA's chief executive.

Wagenaar claimed that it had been agreed that more information relating to the charges against Breytenbach would be made available, in return for Breytenbach handing over her laptop.

Breytenbach earlier pleaded not guilty to the 15 charges the NPA has brought against her. Included in these are allegations that Breytenbach brought the organisation into disrepute which, the NPA claims she did by acting unethically in her handling of the multibillion-rand mining rights case between Imperial Crown Trading and Kumba Iron Ore.

The NPA alleged Breytenbach acted impartially in favouring Sishen over ICT in her probe.

The NPA has also charged Breytenbach with gross insubordination and improper conduct, after claiming she refused to hand over her official laptop to investigators. The NPA claimed Breytenbach allowed a third party, her lawyer, to gain access to the laptop which led to "unauthorised modification of the laptop".

Breytenbach was suspended on April 20 this year, by acting NDPP Nomgcobo Jiba, purportedly in relation to a complaint about her conduct in the prosecution of ICT, who is accused of fraud and forgery in its battle to secure mineral rights over the giant Sishen iron ore mine.

Protecting Mdluli
Breytenbach was suspended as regional head of the specialised commercial crime unit, allegedly for conduct relating to cases allocated to her.

She contended Jiba suspended her in an attempt to protect suspended crime intelligence boss Richard Mdluli.

Last week, Johannesburg Labour Court Judge Hamilton Cele dismissed her application against suspension from the NPA.

This was because Breytenbach had failed to show there were compelling or urgent circumstances to justify a final declaration of the unlawfulness of her suspension, he said.

However, he said that if the NPA did exercise its right to discipline Breytenbach, it could be found to be "flouting and frustrating" the aims of an investigation ordered by the North Gauteng High Court in Pretoria into Mdluli's suspension. – Additional reporting by Sapa

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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See for our stories, activities and funding sources.

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Sally Evans
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