Breytenbach suspension 'a hatchet job'
Like a pendulum, the National Prosecuting Authority's disciplinary hearing of its suspended senior prosecutor, advocate Glynnis Breytenbach, swung from one extreme to the other this week.
In evidence on Tuesday, the NPA's first witness, Hercules Wasserman, acting senior manager of its integrity management unit, at first appeared to deliver Breytenbach a damaging blow.
The hearing, at the NPA head offices in Silverton, Pretoria, has been open to the media after the North Gauteng High Court ruled it was in the public interest. The NPA may still decide to appeal against the order.
Breytenbach faces 16 charges relating to allegations that she showed bias during her fraud prosecution of mining company Imperial Crown Trading.
The company has been locked in a battle with rival miner Kumba Iron Ore over a multibillion-rand stake in the Sishen iron ore mine in the Northern Cape since 2009.
Breytenbach is accused of "engaging" Kumba's legal counsel, advocate Michael Hellens, against Imperial Crown Trading in the drafting of affidavits for an application for a search-and-seizure warrant.
However, in her unsuccessful Labour Court application earlier this month, Breytenbach attributed her suspension by national director of public prosecutions Nomgcobo Jiba on April 30 to her pressing ahead with the prosecution of former crime intelligence boss Richard Mdluli.
Unnaturally close relationship
Wasserman testified that he was given a brief in December to investigate Breytenbach's conduct following a complaint lodged by Imperial Crown Trading lawyer Ronnie Mendelow in October last year in which he accused her of having "an unnaturally close relationship" with Hellens. Wasserman accused Breytenbach of acting illegally when she refused to hand over her work laptop to investigators for analysis. He also testified that his unit had a forensic report showing she had "intentionally destroyed" potential evidence on her laptop.
But on Wednesday afternoon, Wasserman's previously confident testimony started to crumble under questions from Breytenbach's high-profile advocate, Wim Trengove SC. Trengove accused Wasserman's probe of being one-sided, saying: "You only gathered evidence to support the claim (against Breytenbach). You didn't do anything to find out the other side of the story."
The thrust of the defence strategy also became clear: to show that the NPA had gone beyond its mandate in suspending Breytenbach.
Trengove relentlessly continued his line of questioning, which was intended to show that the NPA "did a hatchet job in rustling up" additional charges against Breytenbach after trawling through her personal emails.
Breytenbach is also accused of bringing the NPA into disrepute by allegedly conducting media interviews in which she said the NPA had ulterior motives for suspending her. She is accused of "gross insubordination" for refusing to hand over her work laptop and of deleting evidence.
In his earlier testimony, Wasser-man referred to emails Hellens sent to Breytenbach that his unit had retrieved from her computer through the server. Wasserman said he had been concerned by the emails, which included drafts of affidavits for search-and-seizure warrants.
In July 2011, the Hawks conducted a major search-and-seizure raid on Imperial Crown Trading's office and the department of mineral resources in Kimberley.
Breytenbach withdrew from the case on November 25 last year after a meeting with the NPA's acting chief executive officer, advocate Karen van Rensburg, at which she was told there had been a complaint against her. But according to Trengove, Breytenbach was given no further details of the complaint until April 18 this year.
On Thursday, Trengove referred Wasserman to a memorandum written by advocate Lawrence Mrwebi – appointed in November 2011 to head the NPA's Specialised Commercial Crime unit – on January 12 this year.
In the memo, Mrwebi referred to Mendelow's complaint, saying: "The removal of Glynnis from the investigation and an assessment on her and Hellen's role must be done."
Trengove noted: "It seems that he [Mrwebi] isn't even aware that she had been removed from the Imperial Crown Trading case. It [the memo] doesn't seem to include any reference to any other evidence except the complaint."
Mrwebi's memo also suggested that there was "prima facie evidence of serious misconduct, but also attempts to defeat the ends of justice. This matter may not only be subject to an internal enquiry, but also a criminal investigation."
Trengove referred to a "clash" between Mrwebi and Breytenbach over his decision to withdraw fraud charges against Mdluli in December, surmising that he "seems to have used the complaint to get rid of advocate Breytenbach".
Trengove said the Mrwebi memorandum was sent to Jiba's office on January 26. "A few days later, Mrwebi's suggestion of suspension appears to have been implemented."
* 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.