Judge Hilary Rabkin-Naicker heard arguments from lawyers representing the National Prosecuting Authority (NPA) and Breytenbach on Tuesday.
Breytenbach's lawyer Andrew Redding SC submitted that her new job was not the same as the one she had before her suspension. "The position to which she has been transferred is in no way the equivalent of the position she used to hold," he said.
Redding described the NPA's conduct since Breytenbach's suspension as "unusual".
"What began as an investigation into her conduct blew up into … a federal case against her," he told the court.
He contended that the prosecuting authority had done all it could to prevent her returning to her position from the day on which the NPA levelled allegations against her.
Redding submitted that the NPA still considered Breytenbach suspended.
He said this was based on letters between her lawyer and the NPA after she was cleared of all 15 charges against her.
The NPA wanted to place Breytenbach on special leave pending a review of the disciplinary hearing's findings.
At a meeting held on Breytenbach's return to work, she was told there were allegations of misconduct against her.
"[The NPA] … is doing all it can do to prevent Ms Breytenbach from getting her hands on the docket of … [former police crime intelligence head Richard] Mdluli," Redding said.
Breytenbach has brought an urgent application to get her job back as regional head of the NPA's specialised commercial crime unit in Pretoria.
In April last year, she was suspended and later faced a lengthy disciplinary hearing on 15 charges.
These included that she had not acted impartially when investigating a mining rights dispute involving Kumba Iron Ore, Kumba's Sishen mine in the Northern Cape, and Imperial Crown Trading.
She was accused of "improper relations" with Sishen's lawyer Mike Hellens.
Return to work
On May 27, a NPA disciplinary hearing cleared her of all charges. The following day, the NPA announced it would challenge the ruling in court because it considered the findings "factually incorrect and legally unsustainable".
Breytenbach was allowed to return to work, but then learned that the NPA intended sending her to a different office.
She had claimed her suspension was related to her opposition to a decision to withdraw fraud and corruption charges against Mdluli.
Redding accused the NPA of violating Breytenbach's constitutional and labour rights.
The NPA had acted outside the law by not reinstating Breytenbach to her position, he said.
"It is a constitutional violation. It is a breach of constitutional imperative. Secondly, it is a breach of her employment contract."
It was clear the NPA had not restored Breytenbach to her job to keep her from dealing with a particular case, he said.
William Mokhari SC, for the NPA, argued that Breytenbach's transfer did not take away the post she held before as deputy director of public prosecution.
"The position that she has been deployed to, does not take away her right as a prosecutor to prosecute matters," he said.
Mokhari said the court could not pronounce on a matter which was still under investigation, and that there were laws to protect the rights of the employee.
Mokhari said the NPA was aware that Breytenbach dealt with commercial crime cases, and therefore would give her the opportunity to deal with such matters after the transfer.
"It was to try to make sure that the transfer has minimal disruption as possible to her career. That is why even the post that she was appointed to, it remained that way and unaffected."
However, there were aspects of her work which could be affected by the transfer.
He said a suspension meant the employee's rights had been affected, as long as it was on a temporary basis. – Sapa