National Prosecuting Authority (NPA) advocate William Mokhari SC, said on Monday there was insufficient evidence to prop up two of the 15 charges brought against Breytenbach, relating to her failure to disclose financial interests.
"Those are the charges referred to by the employee [Breytenbach] as the horse stabling charges. No sufficient evidence has been led. In respect of those charges you should not bother yourself," Mokhari told disciplinary hearing chairperson Selby Mbenenge SC.
Counts 13 and 14 on the NPA charge sheet state that Breytenbach had not declared a flat in Roodepoort, Johannesburg, and also earned undeclared extra money from "stabling horses".
Breytenbach has previously expressed ire over the charges when they were read out by her representative, advocate Wim Trengove, in February.
Trengove said: "Count 14 says you earned unauthorised remuneration for outside work, a charge based on the stabling fees for the horses. The essence of the accusation is that you earned remuneration for outside work by earning stabling fees."
Breytenbach responded: "Completely ludicrous. I earned no remuneration by stabling the horses. There must be 80% of people in the NPA that own a second home and rent it out.
Heads of argument
"The flat is in Johannesburg. I used to live there when I worked in Johannesburg. When I moved to Pretoria and bought the property I currently live on, I did not sell the flat. I just rented it out. I still do."
Breytenbach was asked to explain the horse stabling venture. "I stabled three horses of my own and one horse for a son of friends of mine. I did not make profit out of it. There was certainly no business, no remuneration for outside work." Breytenbach said she incurred the cost of keeping the horses.
On Monday, Mbenenge said he had received and studied the heads of argument Breytenbach's defence team and the NPA filed.
He asked Mokhari to explain whether the employer could flout privacy laws, guaranteed in the Constitution, in its bid to prove misconduct.
Mokhari said: "She [Breytenbach] wants to argue that 'in the course of investigating whether I have committed misconduct or not, you [the NPA] then trolled through some of my private stuff'."
Mbenenge said: "Are you saying the employer is entitled to breach the [employee's] privacy rights?
"So the long and short of your submission is that an employer can even go to the extent of misconduct in the context of the Constitution, making nonsense of the constitutional right [to privacy] in order to prove that the employee is guilty of misconduct in the labour context?" Mokhari said the employer was bound by the Constitution, like all other citizens.
"The context of whether the employer did not act in accordance with the Constitution depends on the course of action and another forum would deal with that," he said.
Breytenbach was suspended from her job as head of the NPA's regional specialised commercial crime unit at the end of April 2012.
She argues she was suspended for not wanting fraud charges against controversial former police crime intelligence head Richard Mdluli withdrawn.
In March, a parallel arbitration hearing at the Public Service Bargaining Council in Centurion, found Breytenbach's suspension was both procedurally and substantively fair.
Her lawyer Gerhard Wagenaar said they would consider whether to take the arbitration hearing decision on review or appeal. – Sapa