A risk specialist from the National Prosecuting Authority (NPA) testified on Monday that he was afraid to "push" Breytenbach’s lawyer on handing over her work laptop, as he would have ended up having a "fist fight" with him.
Scelo Xaba, from the NPA's security and risk management unit, is the fifth witness to testify at Breytenbach’s disciplinary hearing, being held at the authority's head offices in Silverton. Xaba was tasked with retrieving Breytenbach’s NPA-issued laptop, her office keys and access cards on April 30 2012 – at the same time Xaba handed Breytenbach her letter of notice of intended suspension.
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.
Xaba testified that he went to Breytenbach’s office and explained why he was there. She then made a few phone calls, one of which was to her lawyer Gerhard Wagenaar, who arrived a short while later. "I requested her to hand over her work laptop and access cards and keys, she said she would give me the cards and keys when she was done but her laptop was not with her at that time."
Xaba said when Wagenaar arrived "he insisted he take [Breytenbach] out for coffee … which meant there was a problem for us to take her to her house to get the laptop. They said after coffee they will come back to the office."
When they returned to her office Xaba testified that Breytenbach "had asked someone from an IT company to come and meet with her at her offices. According to [Wagenaar] they wanted to delete private stuff from the laptop. It was not my mandate to allow them to delete or not to delete stuff from the laptop. However, I could not execute what I had to do to because Mr Wagenaar was quite aggressive and it would have come to a fistfight if I had pushed on getting her laptop. It was either his way or no way."
The NPA’s first witness, Hercules Wasserman, the acting senior manager of its integrity management unit, testified two weeks ago that Breytenbach had acted illegally when she refused to hand over her work laptop to investigators for analysis and also that she had "intentionally destroyed" potential evidence.
Wasserman also testified that the NPA was "struggling to access stuff off the server" because the server had crashed. NPA systems analyst Eudele Swarts testified that only the head office server had crashed, which had no implications on the regional servers, to which Breytenbach's laptop was connected.
Breytenbach's advocate Wim Trengove put it to Swarts: "It means that advocate Breytenbach's [hard drive] could always be accessed, since May 2?" Swarts agreed.
Swarts also testified that permission to access Breytenbach’s back-up information stored on the server was only granted by the NPA on July 26. During cross-examination, Trengove put it to Swarts: "Oh, that was the other day. The NPA, for the very first time went on to the server to retrieve advocate Breytenbach's back-up material on July 26? The NPA got the machine back on May 2 and they said there were deletions from it. They could have asked you at any time to show them what was on her computer before there were any deletions." Again Swarts agreed.
Earlier on Monday an independent IT forensic investigator, employed by the NPA, Jaco Venter, testified that 580 files had been "shredded" from Breytenbach’s laptop on May 2. Venter testified that an attempt to upload a shredder application to Breytenbach's laptop on April 30 had failed, as the NPA could not hand over the administrative password for the application to load.
Venter testified that a folder marked "Kumba ICT", which had been on Breytenbach's desktop had been moved to a folder called "deletions" before it was shredded along with another 12 folders. Venter said: "For a person to shred a document, you want to get rid of it forever."
But Trengove asked Venter why it had been necessary for him to help the NPA when the files had "been available to the NPA all along", to which Venter responded: "I was told by Wasserman that the server crashed."
Trengove then questioned Venter on his ethics in analysing her laptop. "He [Wasserman] gave the entire Breytenbach back-up for you to analyse. I am told, that a number of those files were confidential and private and had nothing to do with Breytenbach's work. They included legal advice to friends, which were legally privileged. When you were given this copy of the back-up, were you given any instruction on the preservation of her privacy?" Venter admitted that he was told that whatever he found, he should give to the NPA.
Cross-examination of Xaba will continue next week.
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