To enjoy the full Mail & Guardian online experience: please upgrade your browser
Sam Sole, Sally Evans27 Sep 2013 00:00
The NPA's thorn in the flesh, Glynnis Breytenbach. (Delwyn Verasamy, M&G)
In the red corner, the tag team of Lawrence 'Spook' Mrwebi and Nomgcobo 'Nine-lives' Jiba. In the blue corner Glynnis "the Bruiser" Breytenbach and Johann 'Judge Dredd' Kriegler.
Before the break, referee Judge John 'Justice' Murphy counted out Mrwebi after a massive blow from Kriegler, but our ringside sources tell us Team NPA will appeal all the way up to tournament director Chief Justice Mogoeng Mogoeng – and, meanwhile, the fight goes on for the Richard Mdluli trophy and that priceless get-out-of-jail-free card …
If it wasn't so serious, the struggle over the National Prosecuting Authority (NPA) would be entertaining.
This week's judgment by Judge John Murphy in the Pretoria high court – re-instating criminal and disciplinary charges against suspended crime intelligence boss Richard Mdluli – marked a victory for Freedom Under Law (FUL), the legal watchdog founded by retired Constitutional Court judge Johann Kriegler.
It also served to bolster the case of advocate Glynnis Breytenbach, the NPA prosecutor who claimed she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Murphy's law may take on a whole new meaning following judgment this week in the case of FUL vs National Director of Public Prosecutions.
Yes, everything that could go wrong for the state in this case did, but that damage was largely self-created.
On the other hand, the pain inflicted by Murphy was rather more deliberate and may prove to be lasting.
Murphy delivered a series of hammer blows smashing the credibility of very senior officials who have dealt leniently with the Mdluli matter: Nomgcobo Jiba, the acting national director of public prosecutions (NDPP); Lawrence Mrwebi, the head of the Specialised Commercial Crime Unit; Andrew Chauke, the director of public prosecutions, who withdrew murder charges against Mdluli; and national police commissioner Riah Phiyega, whose evidence was all but laughed out of court.
Studying the judgment
For this reason alone, the case will be taken on appeal.
The delay in announcing this, while the NPA and the police are "studying the judgment", is testimony to the difficulty in finding chinks in Murphy's closely reasoned findings.
Mrwebi ordered the withdrawal of fraud charges against Mdluli based on the view that only the inspector general of intelligence could investigate crimes related to alleged abuses of the secret service account.
Mdluli was alleged to have made personal use of benefits that were due to the secret fund.
When it appeared that this argument was unsustainable, Mrwebi attempted to argue that the withdrawal of charges was purely for the purpose of further investigation.
He also claimed that he had reached prior agreement with the regional director of public prosecutions who was legally required to concur in this decision, advocate Sibongile Mzinyathi.
This was contradicted by Mzi-nyathi's testimony at Breytenbach's disciplinary hearing.
On the day before the FUL case was due to be heard, the NPA produced an affidavit from Mzinyathi confirming Mrwebi's version.
It did not impress the judge.
"The affidavit is a belated, transparent and unconvincing attempt to rewrite the script to avoid the charge of unlawfulness," Murphy wrote in his judgment.
"In light of the contemporaneous evidence, Mrwebi's averment in the answering affidavit that he consulted and reached agreement with Mzinyathi before taking the decision is equally untenable and incredible to a degree that it, too, falls to be rejected."
Murphy also rejected Mrwebi's claim that Breytenbach failed to pursue the matter diligently and did not report back to him.
"The attempt to blame Breytenbach is frankly disingenuous and unconvincing, as is Mrwebi's subsequent claim that investigations into the charges are continuing."
Rejecting efforts by Mrwebi to belatedly put evidence before the court suggesting that the Mdluli fraud investigation was indeed continuing, Murphy was damning: "The conduct of [Mrwebi], again, I regret, as evidenced by this behaviour, falls troublingly below the standard expected from a senior officer of this court."
Mrwebi has credibility challenges beyond those identified by Murphy.
One of them relates to a Hawks investigation into his alleged interference in a case in which he allegedly had a conflict of interest.
At the same time that Mrwebi withdrew fraud and corruption charges against Mdluli, he allegedly attempted to halt a search-and-seizure operation being carried out by 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.
Mrwebi's role was officially called into question earlier this year when advocate Vickqus Nathi Mncube, the NPA official in charge of the investigation, confirmed Mrwebi's personal interference in an affidavit.
The affidavit also claims that, in May 2012, Mncube reported Mrwebi's interference to Jiba but that she did not take this seriously.
Chauke is the senior prosecutor who withdrew the murder charges against Mdluli relating to the 1999 killing of Mdluli's former love rival Oupa Ramogibe.
Instead, contrary to external legal advice, he referred the matter to an inquest.
Chauke also got short shrift from Murphy.
"An inquest is no substitute for a criminal prosecution because it cannot determine guilt … Chauke's motive for referring the matter to an inquest is therefore dubious. The identity of the deceased was known, as was the cause of his death. The only outstanding issue is the culpability of Mdluli."
Murphy also questioned why the charges other than murder – including assault and intimidation – which were not dealt with by the inquest, were not reinstated.
Murphy wrote: "Chauke has failed to address these other charges … that must be because he has not properly applied his mind to those charges, and the correctness of their withdrawal; or, more troublingly, perhaps because he is acting capriciously and with an ulterior purpose."
Jiba, who steps down as acting national director of public prosecutions next week, has purportedly distanced herself from the fray involving Mdluli.
On this basis, it was argued on her behalf that, if Murphy overturned the decisions to withdraw the prosecution of Mdluli, he should refer the matter back to the NDPP for reconsideration.
Murphy demurred: "Mrwebi did not take issue with the allegation that the NDPP had tacitly confirmed the decisions to withdraw. She clearly has done exactly that.
"It is reasonable to infer from the acting NDPP's supine attitude that any referral to her would be a foregone conclusion … Her stance evinces an attitude of approval of the decisions.
"Had she genuinely been open to persuasion in relation to the merits of the two illegal, irrational and unreasonable decisions, she would have acted before now to assess them, explain her perception, and, if so inclined, to correct them."
Instead, Murphy ruled, her stance had been "technical, formalistic and aimed solely at shielding the illegal and irrational decisions from judicial scrutiny".
But Murphy went further. In a key passage, he states: "Judicial restraint can never mean total abdication. The discretions conferred on the prosecuting authority are not unfettered.
"It seems to me, therefore, inherently wrong to allow laxity to prosecutors, by permitting them to act unreasonably or unfairly, when there is no compelling policy or moral reason for doing so, especially in an era where throughout the world corruption and malfeasance are on the rise."
Boiled down, his judgment is a manifesto against unreasoning institutional deference.
As such it adds pressure to the substantial thorn in the NPA's flesh that is Breytenbach. Unless the new NDPP intervenes, that pressure is likely simply to add to the NPA's determination to remove the thorn.
"Glennys", as the NPA refers to Breytenbach in their court papers, faces a war of attrition against an institutional opponent with bottomless pockets.
Like many corporate heavyweights, the NPA appears happy to litigate its opponent into submission and seems particularly incensed that Breytenbach has somehow contrived to level the playing field.
Central to new allegations levelled against her by the NPA is the question of how she could afford to pay for her expensive defence in her disciplinary hearing, where she was represented by top advocate Wim Trengove.
In an interview in August with the NPA's integrity management unit, Breytenbach was repeatedly questioned about where she got the funds to pay her legal costs, which the unit estimated amounted to more than R3-million.
The interview with the unit's head, Prince Mokotedi, showed that the NPA is pursuing a raft of new allegations against Breytenbach, including:
In the interview, Breytenbach declined to answer questions until they were put in writing, which the NPA did this week.
Those new investigations come on top of the NPA's bid to review and overturn in court the decision of the disciplinary tribunal.
That hearing found her not guilty on all charges relating, among other things, to her handling of the politically sensitive case against Imperial Crown Trading, relating to Sishen iron ore mining rights.
Breytenbach likes to say she answers to no one but the public and the Constitution.
In papers before the Labour Court, Jiba insists that Breytenbach breached all rules of institutional deference because she had defied instructions and because of her claim that Jiba had suspended her to protect Mdluli.
"The allegations have put the NPA into disrepute and destroyed the employment relationship and tarnished my name," Jiba said.
The NPA may have lost a battle, but the war is nowhere near over.
* Got a tip-off for us about this story? Email email@example.com
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.
Read more from Sally Evans
Create Account | Lost Your Password?