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Sam Sole, Sally Evans31 May 2013 00:00
Glynnis Breytenbach. (Luke Boelitz, M&G)
The National Prosecuting Authority's (NPA's) decision to challenge its humiliating defeat in prosecutor Glynnis Breytenbach's disciplinary hearing appears to have all the finesse of a Gupta wedding.
Almost no one believes there is any chance of reversing the 15-0 drubbing it received – every charge was thrown out – but, like the politically connected business family, the Guptas, the NPA has gone too far for embarrassment.
Those calling the shots at the NPA know they cannot afford to let Breytenbach back in. Here's why:
Breytenbach's return to lead the Pretoria Specialised Commercial Crime Unit would kick-start two stalled cases she took personal control of before her suspension – the Richard Mdluli fraud case and the Imperial Crown Trading 289 (ICT) fraud case.
Her return would destabilise a cabal of decision-makers at the apex of the NPA, including the acting national director of public prosecutions, Nomgcobo Jiba, and the national head of commercial crime, Lawrence Mrwebi, who appear to have been positioned by Zuma to protect his interests.
Jiba has been key in blocking efforts by the Democratic Alliance to force the NPA to release the Zuma "spy tapes" that formed the basis for the NPA's decision to withdraw corruption charges against Zuma.
Zuma's delay in appointing a permanent director is emblematic of his dilemma. He appears to believe he can rely on Jiba and to be less sure he can rely on anyone else. Jiba herself cannot be appointed because of her own disciplinary history.
Mrwebi has been central to protecting Mdluli and other political or business allies of Zuma or his family.
The NPA says it must challenge the decision because the findings "have serious implications on the enforcement of discipline in the NPA". The organisation's mandarins have a point here: if they accept Breytenbach's victory and allow her to return they risk a wider revolt against the political deference and legal illiteracy that have come to characterise the NPA.
Breytenbach maintained from the beginning that it was her resolve to prosecute him that triggered her suspension, not the complaint about her from ICT, which was proffered as the reason.
Why is Mdluli so important, and what is the nexus between Zuma, Mdluli, Jiba and Mrwebi?
Mdluli was appointed in July 2009 to head the police's crime intelligence division. The political importance of this post was made clear by the deep involvement of crime intelligence in the battle to discredit the elite Scorpions investigative unit and especially their case against former police commissioner Jackie Selebi.
In 2007, Mdluli (then deputy provincial commissioner for Gauteng) led the investigation of charges against Gerrie Nel, the head of the Scorpions in Gauteng. Nel was arrested in Pretoria on January 8 2008 but the NPA declined to proceed with the case. The arrest was widely seen as an attempt to torpedo the prosecution of Selebi.
Jiba, then a senior advocate in Nel's office, had been intimately involved with the campaign to bring down Nel, partly, it seems, because she held Nel responsible for the prosecution of her husband, Booker Nhantsi. Nhantsi was a deputy director in the Eastern Cape Scorpions, but was convicted in 2005 of dipping into trust funds in 2003 when he was still an attorney.
Jiba was suspended and charged departmentally for her clandestine efforts to help Mdluli to secure the arrest of Nel. Mdluli, in turn, provided an affidavit to Jiba, to use in her failed 2008 Labour Court bid to stop NPA disciplinary proceedings against her.
Mdluli claimed she was a victim of an NPA conspiracy to protect Nel and attached a transcript from a bugged cellphone conversation of then-Scorpions boss Leonard McCarthy in an attempt to back up his allegations.
This was the first disclosure of some of the crime intelligence intercepts that were later leaked to Zuma's attorney Michael Hulley and provided the foundation for the withdrawal of corruption charges against Zuma in April 2009.
Although there is no evidence that Mdluli leaked the Zuma tapes, he was one of the few individuals who had access to them.
Graphic: John McCann
In late 2009, Jiba was allowed to return to the NPA, seemingly as part of a number of concessions to the Zuma era adopted by acting director of prosecutions Mokotedi Mpshe.
In January 2010, Zuma appointed Jiba as a deputy to his new prosecutions director Menzi Simelane. In September that year, Zuma expunged her husband's criminal record.
In December 2011, following the ruling by Supreme Court of Appeal overturning the appointment of Simelane, Zuma made her acting director, a post she still occupies.
Mdluli was appointed as national head of the crime intelligence division from July 1 2009, after an interview with four of Zuma's close Cabinet allies. The acting national commissioner Tim Williams protested to Police Minister Nathi Mthethwa at the time and later described Mdluli's appointment as politically motivated and "irregular".
Mdluli's opponents in the police proceeded to resurrect the investigation of the 1999 murder of Oupa Ramogibe, the husband of Mdluli's former lover. But Mdluli did not sit back. In November 2010, Mdluli compiled a dossier for Zuma in which he pledged his political loyalty, claimed the murder investigation was a plot by former Mbeki loyalists, and provided a so-called intelligence report that fingered Zuma's alleged political enemies.
In March 2011, Mdluli was arrested for the Ramogibe murder.
Breytenbach was not involved in this investigation, which was sidelined when the NPA referred the matter to an inquest, which later found Mdluli could not be linked to the murder.
But Mdluli's temporary arrest led members of crime intelligence to come forward with evidence that led to the investigation of abuses of the police covert fund.
Mdluli was arrested in October 2011 on fraud and corruption charges relating to the purchase of covert police vehicles and it was this case that Breytenbach took control of. She immediately came into conflict with her new boss, Mrwebi, appointed by Zuma as national head of the Specialised Commercial Crime Unit on November 25.
From the start, Mrwebi appeared to believe he operated under a special mandate to deal with the Mdluli matter.
On November 17 2011, Mdluli's attorneys made representations to Mrwebi, in his capacity as head of the unit, asking for the charges to be withdrawn.
It was odd because he had not yet been formally appointed to the post.
Mrwebi demanded a full report on the case, which Breytenbach provided, urging that the prosecution proceed and arguing that Mdluli's representations were based on wild and unsubstantiated allegations of a conspiracy.
Mrwebi brushed this aside and wrote to Mdluli's lawyers informing them he had considered their representations and that he had decided that the charges be withdrawn.
The only reason Mrwebi advanced for his decision was that, in his view, the investigation of the fraud charges against Mdluli was the exclusive preserve of the inspector general of intelligence, Faith Radebe, a view contradicting that of Radebe herself.
In December 2011, Mrwebi took over the management of the ICT complaint against Breytenbach and in January 2012 he submitted a memo to Jiba recommending that Breytenbach be suspended and criminally charged.
In April, Breytenbach delivered an ultimatum to Jiba threatening to take the acting director on review if she did not reverse Mrwebi's decision on Mdluli.
Jiba signed Breytenbach's letter of suspension on April 23.
A year later, Mdluli remains on ice, thanks only to the intervention of the rights organisation, Freedom Under Law, which obtained an interim interdict preventing his reinstatement. But he is still touted to return to a top police position, a prospect that Breytenbach's return to the NPA might impede.
Breytenbach's other key "political" case was a criminal complaint laid against ICT. It originated from a dispute between the Sishen Iron Ore Company, the steel company ArcelorMittal, ICT and the department of mineral resources over mining rights to one of the most lucrative iron ore mines in the world in the Kuruman district in the Northern Cape. Sishen held 78.6% and ArcelorMittal 21.4% of the old- order iron ore mining rights.
Sishen operated the mine in terms of an agreement that gave ArcelorMittal access to ore at a preferential price.
A new Mineral and Petroleum Resources Development Act gave companies until April 30 2009 to covert or lose their old order rights. Sishen converted its rights and, when it appeared that ArcelorMittal would neglect to do so, Sishen prepared an application to convert the 21.4% on its own behalf.
On making its application, Sishen discovered that an unknown shelf company, ICT, had prepared a competing application, which was later given preference by the department.
ICT was politically influential: it included Deputy President Kgalema Motlanthe's partner Gugu Mtshali and a group of politically connected, predominantly Northern Cape businesspeople.
Sishen challenged the award of the minority rights to ICT and, in doing so, gained access to ICT's application. It had features that suggested it had been fraudulently inserted into the process. Sishen laid a charge against ICT, which ended up on Breytenbach's desk.
By that time, a new political element had emerged. As Business Day reported, when the saga broke in early March 2010, the key players were in London on an official state visit. It said: "One senior Kumba source told … of informal conversations in London over the mess, held between Anglo American chief executive Cynthia Carroll … [ArcelorMittal South Africa chief Nonkululeko] Nyembezi-Heita, Ajay Gupta and Mr Zuma."
The report said Zuma wanted to know how it might be possible for "everyone to win".
Just days later, on March 12, Pragat Investments (Pty) became a 50% shareholder in ICT. Pragat was owned and controlled by Jagdish Parekh, a senior executive in a number of companies falling under the control of the Gupta family.
ICT has always denied the Guptas have any direct or indirect interest in ICT, but their broader involvement in the Sishen deal became clear in August 2010 when ArcelorMittal announced it would buy ICT and simultaneously enter an empowerment deal with a consortium that included the Guptas and Zuma's son, Duduzane.
The controversy and the December 2011 court ruling that overruled the department's award of rights to ICT have put paid to the deal but not to the criminal investigation and the manipulations it might reveal.
Since Breytenbach's removal from the case, following a complaint to the NPA by ICT, the investigation appears to have been stymied.
Meanwhile, new allegations have emerged that Mrwebi interfered in a case where he had a clear conflict of interest. In August last year, the Mail & Guardian reported that, in December 2011, Mrwebi attempted to halt a search and seizure operation being carried out by Colonel Frans Kola of the Hawks at the home of Terence Joubert.
Joubert is employed by the security and risk management unit of the NPA in KwaZulu-Natal and is a colleague and friend of Mrwebi.
The Hawks investigation pertained to allegations that Joubert and others were involved in manipulating the award of an NPA security contract.
At the time, the M&G could not confirm the allegations of Mrwebi's interference and the NPA refused to answer questions about it, saying it would "not be drawn into responding to gossip-mongering". But since then, it has seen an affidavit by advocate Vickqus Nathi Mncube, the NPA official in charge of the investigation.
The affidavit confirms that account – and goes much further.
It states: "On the 2nd of December 2011 at about 6h00 I received a telephone call on my cellphone from Lt Col Kola. He informed me that a person who claimed to be an NPA official and had introduced himself as Lawrence had called him and had instructed them not to continue with the execution of the search and seizure warrants.
"Kola decided to call me with a view to find out if I was aware of this instruction. I informed Kola that no NPA official has a right to stop them from performing their duties."
Mncube says that at about 7.30am he received a call from Mrwebi requesting to have an urgent meeting. "After a few minutes he arrived at my office. He informed me that he had just received a phone call from his friend Mr Terence Joubert …
"According to advocate Mrwebi, Terence was not happy with the fact that the police were raiding his house and wanted them to stop. Advocate Mrwebi told me that he had called Kola after receiving Kola's cellphone number from Mr Terence Joubert …
"Advocate Mrwebi questioned me about the warrants. He wanted to know if indeed the police were in possession of search warrants. He was of the view that it was not necessary for the warrants to be executed … I advised him to allow the legal process to take its course and not interfere. He was visibly upset by the fact that I questioned his action."
The affidavit discloses that Mrwebi had a serious conflict of interest – he admitted that Joubert was his "best friend" and that he had at first represented, then assisted, Joubert with an NPA disciplinary matter, which involved some of the allegations being investigated by Kola.
It claims that, after Joubert's arrest, Mrwebi attempted to instruct Mncube to go back to court to change Joubert's bail conditions.
The affidavit claims that, in May 2012, Mncube reported Mrwebi's interference to Jiba but that she did not take this seriously. It discloses that, despite his obvious conflict of interest in the matter, Mrwebi interfered further and, in November 2012, removed Mncube from the case involving Joubert.
Mncube prepared a formal report on Mrwebi's interference and submitted it to Jiba. He recommended that the matter be referred to the police for investigation, but he never received a response.
Mncube declined to comment, but did not dispute the existence of the affidavit. The NPA failed to respond to detailed questions.
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The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.
Read more from Sam Sole
Sally is a reporter at the Mail & Guardian Centre for Investigative Journalism, Amabhungane.
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