Mendelow concludes testimony at Breytenbach hearing

Ronnie Mendelow, who has given evidence against suspended prosecutor Glynnis Breytenbach for over four days since August last year, concluded with two 24-page documents summing up his clients’ case against the advocate who was suspended by the NPA in April last year. ICT and Mendelow alleged that 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 Company (Sioc). Mendelow — whose October 31 2011 complaint to the national director of public prosecutions acted as a catalyst for Breytenbach’s April 2012 suspension — testified that Breytenbach had an “unnaturally close relationship” with ICT rival Kumba’s advocate Michael Hellens, who had lodged a case of fraud against ICT. 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 2011 — among other things. The search warrants were a culmination of problems, which began when the department of mineral resources 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 then ruled that the stake belonged to Sioc and Kumba. The matter is being appealed. Mendelow referred to several emails during his evidence, sent from Hellens to Breytenbach during the course of 2011, in which he attached draft affidavits to be used in the warrant application by Lieutenant Colonel Sandra van Wyk, who led the police’s investigation into alleged fraud committed by ICT. Alleged bias Mendelow testified this morning that the involvement of Hellens in drafting various affidavits was “disingenuously disguised by Van Wyk and Breytenbach”. Before Mendelow was able to read “line-by-line” the second 24-page document he had prepared, the hearing’s new chair, Eastern Cape advocate Selby Mbenenge SC, upheld an objection from Breytenbach’s advocate that Mendelow not “engage in the tedious exercise” of reading the whole document out loud. Instead it was handed in as part of Mendelow’s evidence in chief. But before Mendelow could wipe the sweat from his brow, Breytenbach’s advocate Wim Trengove was on the attack, putting it to Mendelow: “You are biased and you are paid to be biased. Your commercial interest and professional duty is to advance the case of ICT. You are paid to be here to advance their best interests.” Trengove referred to a ruling made in the Kimberley High Court in May 2012, that during Mendelow’s testimony he had “made a finding” against Breytenbach, despite the judgment in which Judge Raymond Zondo noted that he could not make a ruling on the allegation of bias against Breytenbach and Van Wyk based on the papers submitted in court, as this would constitute “jungle justice”. Trengove put it to Mendelow and the hearing: “In your evidence in this inquiry, you purport to do what the judge said was impossible – to make a finding on paper which constitutes jungle justice. “He [Mendelow] has made his own findings and conclusions in this hearing. This witness has given the most extraordinary evidence. He has come here to read and present all of these papers, which are substantially the same allegations that are before the courts and then he gave us his own opinions.” Mbenenge was appointed by the NPA following the recusal of attorney Sandile July. July recused himself after the NPA brought an application on the grounds that his position as a director at Werksmans Attorneys could create a perception of bias. ‘Motive and opportunity’ Werksmans represents steel giant ArcelorMittal South Africa (Amsa) in matters relating to the ongoing multibillion-rand rivalry between ICT and Sioc over a 21.4% stake in the Northern Cape Sishen Mine. Trengove has now started to go through the background of the ICT/Sioc legal battle over the prospecting rights. Sioc has alleged that ICT “committed fraud pertaining to the manipulated title deed in respect of ICT’s application for the prospecting right”. ICT has claimed that Sion had “motive and opportunity” to having placed a manipulated title deed in ICT’s prospecting application form. Sion and Kumba have 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. Disguised copies of Kumba’s title deeds were later found in ICT’s application. Trengove’s cross-examination of Mendelow is expected to last several days, and will resume on Tuesday.

• This article was first published by the M&G Online on January 14 2013

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