It has been a bumpy few weeks for suspended senior prosecutor Glynnis Breytenbach since she was acquitted on the 15 charges brought against her by the National Prosecuting Authority.
Breytenbach was cleared of any wrongdoing by advocate Selby Mbenenge, the NPA’s externally appointed chair in her internal disciplinary enquiry, on May 27.
The day after, the NPA hit back at Mbenenge’s ruling, and in a strongly-worded statement it warned the NPA would seek a review of his findings through the Labour Court.
On Wednesday, the NPA made good on its promise and served papers in support of an application for the court to review Mbenenge’s ruling. The NPA has asked the Labour Court to make an order that Breytenbach be dismissed or alternatively refer the matter back to the NPA who will then “impose an appropriate sanction”.
Before the NPA filed its application, Breytenbach was invited “to discuss her return to work” as the regional head of the NPA’s Specialised Commercial Crime Unit in Pretoria, “pending the review application”.
She was due to go back to work at the start of the week, following a meeting on Monday morning with the NPA’s acting head advocate Nomgcobo Jiba to discuss Breytenbach’s reintegration back into the unit.
Breytenbach has been on suspension for 14 months. It appears however, that things did not go well following Monday’s meeting. The Mail & Guardian understands the current status of the situation is “an awkward one”.
Return to cases
After she was acquitted last month Breytenbach, through her attorney, said that she intended, “if she was allowed to, to take up the cases which I was dealing with and by this I mean all the cases I was dealing with upon my return to office”.
At the time of her suspension in April last year, Breytenbach was pushing for charges to be reinstated against suspended crime intelligence boss Richard Mdluli, which had been provisionally withdrawn by her direct boss and the head of the Specialised Commercial Crime unit advocate Lawrence Mrwebi.
She has maintained that the NPA specifically targeted her in order to protect Mdluli from being prosecuted on charges of fraud and corruption.
Breytenbach was also involved in several other high profile and politically sensitive cases including the multibillion-rand mining rights dispute between Sishen Iron Ore and Imperial Crown Trading.
The NPA’s case against Breytenbach is based almost entirely on a complaint made by Imperial through its lawyer Ronnie Mendelow that Breytenbach had shown bias towards his client’s rival, Kumba Iron Ore subsidiary, Sishen Iron Ore.
While Breytenbach’s attorney Gerhard Wagenaar confirmed to the M&G on Thursday they have opposed the NPA’s Labour Court application, he could not comment on what has transpired this week.
Wagenaar did confirm however, that Breytenbach “has not been at work since Monday. We cannot comment on the reasons for this.”
But in its Labour Court application, the NPA has made it clear that it does not want Breytenbach back.
Jiba, who signed off on Breytenbach’s suspension, filed an affidavit in support of the NPA’s review application. In her affidavit Jiba refers to the grounds for the application, which ultimately rest on two main issues.
The first is that the “trust relationship” between Breytenbach and her two superiors – Jiba and Mrwebi – “has irreparably broken down”.
Referring to an urgent Labour Court application brought by Breytenbach last year, in which she challenged her suspension, Jiba notes Breytenbach’s allegation that: "I backdated the letter of her suspension in order to protect General Mdluli from prosecution. She failed to back up the allegation at the Labour Court or in the founding affidavit."
Jiba is unequivocal that the allegations that she suspended Breytenbach to protect Mdluli have "put the NPA into disrepute and destroyed the employment relationship and tarnished my name” and the relationship is therefore “incapable of being repaired”.
Jiba argues that Mbenenge's finding to the contrary was "grossly irrational and unreasonable".
Mbenenge ruled that Breytenbach's allegations contained in her Labour Court affidavit were protected by privilege.
Added to this, Jiba argued that during her inquiry Breytenbach showed "no respect for her immediate superior Mrwebi. It is not possible for her to work with Mrwebi. The trust relationship has also broken down between them."
The second issue, referred to by Jiba as grounds for review, relates to Mbenenge’s handling of the evidence during the inquiry on which he made his findings.
Mbenenge has also been served with the application papers and is listed as the second respondent in the matter.
'Independent and objective'
The NPA has accused Mbenenge of only relying on Breytenbach’s final heads of argument in determining his ruling. Jiba has argued in her affidavit that Mbenenge “completely ignored” material evidence testified on by several NPA witnesses, specifically with regards to Mendelow’s evidence.
Mendelow claimed that Breytenbach had “engaged” Sishen’s legal counsel advocate Mike Hellens in drafting various affidavits during the mining rights investigation and that this showed bias.
The NPA accused her of abusing her authority as a prosecutor and asked the chair to find her guilty of violating workplace rules by engaging Hellens’ help.
But Mbenenge found that: “There is no evidence that the employee was not always in control. She was independent and objective.”
However Jiba claims that, “it will become clear from the reading [of Mbenenge's ruling] that he does not refer to the record, or the evidence in the record. He gives a one-sided version of the evidence [of Breytenbach’s] heads of argument. He does not evaluate evidence even where there are two versions which are mutually destructive.”
Jiba argues that when "two versions, which are mutually exclusive", Mbenenge is obliged to "evaluate the evidence and accept one version on reasons and reject the other on reasons. A failure to do so constitutes a reviewable ground."
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