Pretoria’s director of public prosecutions Sibongile Mzinyathi is expected to testify before the Mokgoro inquiry on Wednesday.
Among other things, he will likely face questions about whether, when Lawrence Mrwebi decided to withdraw corruption charges against former crime intelligence head Richard Mdluli, he wanted to kill the case forever.
On Tuesday, Mrwebi’s counsel — Mervyn Rip SC — said Mrwebi, the suspended national head of the Specialised Commercial Crime Unit (SCCU), did not make a final decision to shut down the prosecution.
The inquiry — chaired by retired Constitutional Court justice Yvonne Mokgoro — was established by President Cyril Ramaphosa to look into whether Mrwebi and deputy national director of public prosecutions Nomgcobo Jiba are fit for office, after the two had been roundly criticised in a number of court judgments in high profile and politically sensitive court cases.
Some of these criticisms related to the way they handled litigation about the decision to drop charges against Mdluli — a decision that was set aside by the Supreme Court of Appeal.
On Tuesday, Glynnis Breytenbach — the former head of the Pretoria office of the SCCU — testified that there was a prima facie case against Mdluli and, aside from some loose ends, it was ready for court.
Mzinyathi — whom she reported to — agreed, she said. But Mrwebi, even before he had been officially appointed to head up the SCCU, had received representations from Mdluli’s legal team. He then said that the charges must be withdrawn because the corruption allegations against Mdluli fell inside the mandate of the Inspector General of Intelligence (IGI) — a view she strongly disagreed with.
Breytenbach further testified it was not for Mrwebi to decide to discontinue the prosecution — it should have been Mzinyathi.
Mrwebi is yet to testify.
However in cross-examination, Rip said Mrwebi would tell the inquiry that he never intended that the case be finally withdrawn. Instead it was his view that more evidence was needed. Rip suggested that when Mrwebi told Breytenbach and Mzinyathi that they should liaise with the IGI it was for the purpose of accessing the evidence they would need.
But Breytenbach referred to a letter from the IGI saying the Mdluli matter was a matter for the NPA to deal with. “We therefore recommend that this matter be referred back to the NPA for the institution of the criminal charges,” reads the letter.
She then went to a memo that Mrwebi had sent her on March 19 2012, in which he apparently ignored the IGI’s letter and said the NPA’s decision to withdraw the charges “stands and this matter is now closed.”
Rip agreed that Mrwebi had perhaps not used the best words, but his “intention” when he said the matter was now closed, was to refer to the “to-ing and fro-ing” between Breytenbach and himself.
Breytenbach replied that she did not think any “any reasonable person reading that letter would have read it like that”.
She was also closely questioned by Jiba’s counsel Norman Arendse SC about her view that there was an ulterior motive behind her suspension and a disciplinary process that she had been subjected to.
Breytenbach was suspended in April 2012 shortly after she and her colleague Jan Ferreira had approached Jiba asking her to review Mrwebi’s decision on Mdluli. The suspension was based on a complaint by attorney Ronald Mendelow in another investigation Breytenbach was overseeing: into alleged tender fraud by Imperial Crown Trading — a company with links to Duduzane Zuma and, it later emerged, the controversial Gupta family.
Breytenbach said the complaint was spurious and that it was just an excuse to get her off the Mdluli investigation.
Arendse suggested that when Breytenbach challenged her suspension in the bargaining council and at the labour court, no basis for an ulterior motive was found. She responded that she respected the court’s judgments but her view remained that there was an ulterior motive for the disciplinary process.
Arendse also asked whether her “strong view of a conspiracy” clouded her judgment on the Mdluli matter. Breytenbach said no, reiterating that there was a prima facie case for Mdluli to answer.