The National Prosecuting Authority upped the ante at the disciplinary hearing of suspended senior prosecutor advocate Glynnis Breytenbach this week, announcing that it was preparing an application to have the chairperson, attorney Sandile July, removed.
NPA advocate William Mokhari made the surprise announcement on Thursday morning, the start of day nine of the hearing. Mokhari said the NPA would bring the application, which Breytenbach's legal team will oppose, on August 17.
July is the second chairperson to preside over Breytenbach's disciplinary hearing. His predecessor, Barry Madolo, was removed after granting the media access to the hearing. It followed an urgent court application by the media, which was granted access by an order of the North Gauteng High Court.
It was unclear on what grounds the NPA would argue for July's removal, although murmurs at the hearing suggested it might argue a case of bias against the attorney, who is a director at Werksmans Attorneys.
Meanwhile, there was no love lost this week between Breytenbach and her nemesis, Ronnie Mendelow, the lawyer acting for mining company Imperial Crown Trading, who began testifying on Tuesday.
Mendelow gave evidence relating to Breytenbach's alleged bias during the multibillion-rand mining battle between Imperial Crown Trading and the Sishen Iron Ore Company, a subsidiary of Kumba Iron Ore.
An unnaturally closerelationship
The catalyst for her suspension, according to the NPA, was a letter of complaint Mendelow sent to the then national director of public prosecutions, Menzi Simelane, in October last year.
Mendelow claimed that Breytenbach had "an unnaturally closerelationship" with the legal counsel for the Sishen Iron Ore Company, advocate Michael Hellens SC.
Breytenbach has, however, maintained that her suspension was a ploy by acting national director of public prosecutions Nomgcobo Jiba to stop the prosecution of former crime intelligence boss Richard Mdluli – a case Breytenbach pursued relentlessly until her suspension.
Mokhari reacted to this assertion on Thursday morning when he responded to an objection raised by Wim Trengrove SC, Breytenbach's advocate. Trengove asked the NPA for an explanation of the tangential evidence Mendelow had given for over two days, most of which, Trengove argued, was based on inference.
Mokhari responded, saying: "We need to dispel this notion that was bandied around that she [Breytenbach] was persecuted. But because that was raised and publicised to the whole world, we have to restore the integrity of the NPA and put on record all [her instances of] misconduct."
Mokhari also referred to the cross-examination last month of NPA witness Hercules Wasserman, and said Mendelow had no time constraints on the length of his evidence. Wasserman came under fire for two days from Trengove during cross-examination – to such an extent that he is said to have taken stress leave since testifying. Mokhari implied that he was trying to save Mendelow from a similar fate.
Despite this, Trengove looked ready to tackle Mendelow on his evidence and objected to his testimony several times.
In one instance, Trengove accused Mendelow of playing the role of prosecutor and judge: "He [Mendelow] is not here to argue or decide the case. It is not the task of a witness to evaluate evidence and then to decide what is true or not."
He warned Mendelow that he was "playing an extraordinary role from the witness box" after Mendelow asserted that it was "entirely true" that Hellens had been "improperly involved" in the Imperial Crown Trading investigation.
The NPA has accused Breytenbach of "engaging" Hellens for use against Imperial Crown Trading in the drafting of affidavits for an application of search-and-seizure warrants in July last year. The Hawks carried out the raids as part of their investigation into whether Imperial directors or staff from the department of mineral resources had committed forgery by copying parts of Sishen's mining rights application.
The raids were the culmination of legal disputes between the two over the granting of mineral rights to the Northern Cape Sishen mine in 2009. The department granted Imperial Crown Trading prospecting rights over the stake – a decision later overturned by the North Gauteng High Court.
Breytenbach glared at Mendelow when he told the hearing that her probe had "clearly been a one-sided investigation [bent] on nailing Imperial Crown Trading". Mendelow argued, quite forcefully, that Breytenbach and investigating officer Lieutenant Colonel Sandra van Wyk "turned a blind eye" to a counter complaint of fraud the department laid against Sishen in September last year.
"The idea clearly was to consolidate or to bring the two complaints under the same roof. She then takes an acute interest in the [Sishen] complaint, but the [department's] complaint just disappears off the radar screen," Mendelow said.
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