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Breytenbach hearing: ‘You were out to nail her’

Suspended prosecutor Glynnis Breytenbach is a no-nonsense person who "would not be dictated to by anyone", said the first witness to testify for her at her disciplinary hearing this week.

Anthony Norton, the attorney for Kumba Iron Ore, said in his evidence-in-chief on Thursday morning that Breytenbach was frank when she met him for the first time, telling him that Kumba's case would not be prioritised and that she had "no regard" for who Norton's clients were.

Giving evidence at the National Prosecuting Authority's (NPA) offices in Pretoria, Norton said that Breytenbach had explained the "ground rules" to him and had "made it clear who was in charge".

Breytenbach was suspended in April last year because of her alleged bias in the fraud investigation into Imperial Crown Trading (ICT). The company is locked in a battle with a mining rival, Kumba subsidiary Sishen Iron Ore, over a multibillion-rand stake in the Sishen iron mine in the Northern Cape.

Breytenbach has been accused of "engaging" Sishen Iron Ore's legal counsel, Michael Hellens, in the drafting of affidavits for an application for a search-and-seizure warrant against ICT in 2010.

Hellens described Breytenbach as a "very robust individual and she is very much her own person". He told the hearing that he has known Breytenbach for 25 years. He said she is "thoroughly independent and I have a high regard for her. I would say we are friends." He also noted that Breytenbach was "always fair. But if you trifled with her or if you tried to sell her a lie, you would be sorry."

ICT lawyer Ronnie Mendelow lodged a complaint against her to former NPA head Menzi Simelane in October 2011. Last week, Mendelow testified that Breytenbach had neglected to carry out her duties in line with the prosecutorial code of conduct when she "prioritised" the criminal investigation of ICT over a counter complaint of fraud by the mineral resources department and ICT against Sishen Iron Ore.

Any form of priority Breytenbach alleges that she was suspended because of her persistence in pursuing the prosecution of former crime intelligence boss Richard Mdluli.

Norton told the hearing: "The first time I met her, I … explained I am a corporate lawyer with limited criminal experience. Given that background, she was not terribly impressed. She felt it necessary to put me in my place and wanted to make it very clear who was in charge of the process and how the investigation would work.

"Her opening salvo was to explain the ground rules, to say: 'You are representing a criminal complainant and we will decide how this is process goes; you will not dictate anything on how the investigation is carried out.'"

Norton added that Breytenbach said she "had a lot of other cases she was dealing with, so she wasn't going to afford any form of priority to us".

He testified that, once the investigation into ICT was under way, Breytenbach told him: "If your clients have misled me or have been dishonest, I will nail their hides to the wall." Said Norton: "That was the approach she adopted. She made it very clear that, if our clients had not been honest, she would take appropriate steps against them."

The NPA closed its case on Wednesday afternoon. Earlier this week the hearing heard evidence from Lawrence Mrwebi, head of the NPA's specialised commercial crimes unit. Mrwebi's voice became increasingly quiet as the cross-examination by Breytenbach's advocate, Wim Trengove, took its toll.

Mrwebi signed off on an internal investigation that triggered Breytenbach's suspension.

On an impression In a January 2012 memorandum to the acting head of public prosecutions, Nomgcobo Jiba, he recommended that the NPA should investigate Breytenbach's conduct and that there was "prima facie evidence" for a criminal case against her for defeating the ends of justice.

However, under cross-examination he conceded that his recommendations to Jiba were based "on an impression" he got from statements made in relation to a complaint against her by Mendelow.

Trengove put it to Mrwebi that his recommendations to Jiba were "baseless" and that there was no evidence to support the claim of bias or a criminal case against Breytenbach. He asked: "So [the allegation] of naturally advancing the case of one party and or ignoring the complaints of another party may amount to a crime of defeating the ends of justice?" Mrwebi claimed that the "purpose" of his letter to Jiba was to say only that "there are these issues. I am not saying this is the fact. I recommended an investigation to look at these issues, amongst others. I was simply the decision-maker."

Trengove shot back: "This means: 'You must consider suspending her' as well …" Mrwebi confirmed this.

Mrwebi said that after sending his memorandum he was told nothing about Breytenbach's internal disciplinary process or her suspension.

Unsubstantiated allegations Said Trengove: "You took control of this complaint … How does she get suspended without you knowing about it?"

Mrwebi replied: "It was handled by labour relations."

Trengove accused Mrwebi of adding "a scurrilous gloss" to a memorandum he penned on the ICT complaint.

"This memo is not an analysis; it is a regurgitation of Mendelow's wild and unsubstantiated allegations," he said.

"Your only contribution was to add a scurrilous gloss of defeating the ends of justice, and the reason was because you and advocate Breytenbach had clashed about Mdluli's prosecution. You were out to nail her to make sure you had your way."

The hearing continues.

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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See for our stories, activities and funding sources.

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Sally Evans
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