Imperial Crown Trading’s lawyer Ronnie Mendelow is the National Prosecuting Authority's first witness to testify to charges that senior prosecutor, advocate Glynnis Breytenbach, showed bias in the criminal investigation into alleged fraud and corruption in the high-profile mining rights dispute between ICT and Kumba Iron Ore subsidiary, Sishen Iron Ore.
Mendelow – whose October 31 2011 complaint to the national director of public prosecutions acted as a catalyst for Breytenbach’s April suspension – has spent the first two hours of his evidence in chief going through the legal tussle between ICT and Sishen.
In his letter to the then NDPP Menzi Simelane, Mendelow claimed that Breytenbach had "an unnaturally close relationship" with Kumba advocate Michael Hellens.
The NPA has charged Breytenbach of "engaging" Hellens against ICT in the drafting of affidavits for an application for a search-and-seizure warrant in July last year.
The search warrants were a culmination of problems, which began when the Department of Mineral Resource awarded a 21.4% stake in Sishen mine in the Northern Cape, to ICT. Sishen took the matter to court where the company applied for a review application of the department’s decision to grant ICT the prospecting rights.
The North Gauteng High Court ruled that the stake belonged to Kumba.
Mendelow referred to ICT chief executive Phemelo Sehunelo’s answering affidavit in the review application, filed in February last year, in which Sehunelo "refuted the allegations" made by Sishen that ICT "had committed fraud pertaining to the manipulated title deed in respect of ICT’s application for the prospecting right".
Mendelow said that Sehunelo’s affidavit "demonstrated how [Sishen] had both the motive and opportunity to itself having placed the manipulated title deed in ICT’s application. In any event, any criminal investigation into ICT’s conduct would, we believe would equally entail (Sishen’s) own alleged fraudulent conduct and post-dated stamp in its application.”
Kumba alleged 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. Amateurly disguised copies of Kumba’s title deeds were later found in ICT's application.
Mendelow referred to the affidavit of Kumba's legal services head, Robert Botha, who said the company had employed a consultant to hand deliver a copy of their application to the department’s head office in Centurion on April 30 2009 as well as to the regional Kimberley offices.
On April 30 2009 Sishen held a 78.6% stake in the mine after it had applied in 2008 for a conversion of its old order to a new order mining right, while ArcelorMittal SA held the remaining 21.4%.
Mendelow said: "May 1 2009 was the first day after the cessation of the old mining rights and was a public holiday and the offices of the DMR were therefore closed on that day. Because that was the first date that such an application could be made, Sishen delivered its application to the DMR offices on Thursday April 30 2009. They had arranged with a department official from Kimberley to physically receive the application on that day but to date stamp it for May 1 2009. This was done on the understanding that the lodgment would only take effect on the first business day following the cessation of the old mining right."
Mendelow then referred to an affidavit by the department's then director general Sandile Nogxina, "who pointed out that Sishen’s mining rights application had been prematurely lodged and had been wrongfully post-date stamped to misrepresent the date of lodgment. Therefore their mining right would have precedence over any other mining rights application lodged on May 4 with the department."
Mendelow said Nogxina had noted that "the conduct of Sishen was designed to subvert the control measures put in place by the department". Mendelow testified that this proved that "Sishen’s application was a nullity and did not constitute lodgment of the law at all in fact. ArcelorMittal still had at that time a right."
Judge Raymond Zondo ruled last year that when Sishen had applied for its conversion of it's 78.6% stake in the mine, "that rightly or wrongly the department had in fact granted a conversion of that 78.6% into 100% of the mining right". Mendelow said, "He [Zondo] said that was an administrative act that stood until it had been corrected to set aside by a court order."
Leave to appeal was granted to both parties. Since the review both sides have laid criminal charges against one another. It is here where Breytenbach has been charged by the NPA. She is accused of working with Kumba against ICT.
In July last year the Hawks conducted a major search and seizure raid on ICT’s offices and the department of mineral resources in Kimberley.
Breytenbach was assigned as the state prosecutor in the case, but ICT "took exception to her conduct".