Advocate Selby Mbenenge ruled on Monday morning at the National Prosecuting Authority's (NPA) Silverton offices that senior prosecutor Glynnis Breytenbach could not be found guilty of any of the 15 charges the NPA brought against her last year.
Mbenenge, who read a summary of his judgment, noted that the "guilt of the employee of this plethora of charges have not been proven and she can therefore not be found guilty".
After the ruling a delighted and relieved looking Breytenbach hugged her lawyer and other friends who were here to support her. Her lawyer, Gerhard Wagenaar, read out a statement on her behalf after the ruling: "I am relieved that the chairperson saw the lack of justification in the charges laid against me, although the expense of defending myself against the unjustified attack upon me was outweighed by the personal humiliation and sheer strength of will that it took to defend myself. I am nevertheless more than elated that I have been vindicated. If I am allowed to, I will return to my post and continue to prosecute without fear, favour or prejudice as I have always done in the past. I intend, if allowed to, to take up the cases that I was dealing with – and by this I mean all the cases that I was dealing with – upon my return to office.".
Breytenbach has always maintained that the charges against her are baseless and unsubstantiated.
She claimed that they were brought against her because she refused to squash a fraud investigation into controversial former crime intelligence boss Richard Mdluli. It was only after she persisted with the Mdluli investigation in early 2012 – after her boss advocate Lawrence Mrwebi ordered that fraud charges against Mdluli be dropped – that Mrwebi signed off on an internal investigation into Breytenbach.
The feisty prosecutor has waited for well over a year for this ruling as her internal disciplinary hearing stopped and stalled between a shuffle of three advocates to chair the trial since it began in June last year.
She initially faced 15 charges, although two were withdrawn. Most of the 13 charges centred on allegations that Breytenbach failed to act ethically and impartially during the investigation in 2011 of the multibillion-rand mining rights dispute between Sishen Iron Ore and Imperial Crown Trading.
She was suspended in April last year, six months after Imperial's lawyer Ronnie Mendelow lodged a complaint against Breytenbach with the NPA. He accused her of showing bias towards his client's rival, Kumba Iron Ore subsidiary Sishen Iron Ore company.
Mendelow claimed in his October 2011 complaint to the NPA that Breytenbach "engaged" Sishen's legal counsel advocate Mike Hellens in drafting various affidavits. He claimed this showed bias. The NPA's case against Breytenabach was based almost entirely on Mendelow's complaint. The NPA accused her of abusing her authority as a prosecutor. The prosecuting authority asked the chair to find her guilty of violating workplace rules by engaging to help Hellens during the mining rights investigation against Imperial. The NPA further accused Breytenbach of pressurising an Imperial director to turn state witness.
Mbenenge ruled however that: "There is not an iota of evidence that the employee tried to get a confession [from Imperial's director] by conspiring to do so." He added: "There is no evidence that the employee was not always in control. She was independent and objective. She cannot be found guilty". Mbenenge said in relation to the allegation that she had allowed Hellens free reign over the investigation.
Mbenenge ruled that it was "hard to see how" Breytenbach contravened any NPA policies and codes of conduct. The NPA claimed that Breytenbach ignored a counter complaint made against Sishen by ICT and she ought to have referred this complaint to a senior Hawks investigator. However, Mbenenge said "the facts of this case do not warrant a conviction on this charge". Mbenenge also found that the NPA "violated" Breytenbach's constitutional right to privacy, following a claim by the NPA that she had refused to hand over her work laptop during their internal investigation last year. "I am satisfied Breytenbach demonstrated the infringement of her right to privacy. The instruction to hand over laptop was unlawful. She was entitled not to give heed to this instructions."
The NPA told reporters that it "respects the ruling" but that it was "going to study it and before we take the matter forward".
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