JOHANNESBURG - ‘A hatchet job’. A ‘fishing expedition’, ‘one-sided’ and an ‘attempt to nail Glynnis Breytenbach’.
The National Prosecuting Authority’s investigation into the complaint laid against the regional head of the Specialised Commercial Crimes Unit was labelled all manner of things by her advocate Wim Trengove during her disciplinary hearing in Silverton last week.
The essence of the complaint, laid by Imperial Crown Trading’s attorney Ronald Mendelow, is that Breytenbach allowed herself to be influenced by a complainant’s counsel in a criminal matter involving ICT and Kumba over the rights to the Sishen Mine. The claim is that she let Kumba’s advocate Mike Hellens draw up affidavits on behalf of the State and mandated him to negotiate plea bargains with witnesses.
In addition to the primary complaint, the NPA added a raft of further charges which relate to her allegedly refusing to hand over her laptop, destroying evidence on her laptop, speaking to the media, violating the NPA’s media policy, earning additional income by stabling a friend’s horse and renting a flat as well as bringing the organisation into disrepute by launching her Labour Court application.
At the heart of Breytenbach’s defence is that her suspension had nothing to do with Mendelow’s complaint, ICT, Kumba or the mining rights – and it had everything to do with former SAPS Crime Intelligence head Richard Mdluli.
During three days of torturous cross examination, the NPA’s senior manager at its Integrity Management Unit, Hercules ‘Wassie’ Wasserman faced salvo after salvo from Trengove who accused him of ‘trawling through Breytenbach’s email inbox’, ‘rustling up charges’ against her and going ‘beyond his mandate to nail her’. The prolific advocate crafted a timeline of events, charting the sequence of Breytenbach’s suspension in parallel with the Mdluli matter, saying the inference is obvious that she was sidelined in order to stop her persisting with the case against the controversial cop. In turn, Wasserman portrayed Breytenbach as malleable, deceptive, arrogant and a liar who was disrespectful to the organisation. He spoke of safeguarding the integrity of the NPA: "If the general public loses their confidence in the criminal justice system, we've got a problem. If all those employees were running to the media, we would have had havoc."
Mud was flung by both sides and much of it stuck. It became spectacularly clear why the NPA was so adamant that this disciplinary hearing be held in private. The four days of testimony exposed the deep rooted interference within the Prosecuting Authority and the extent to which it has been tainted by personal and political vendettas.
The organisation already has a dented image and questions hang over its integrity, largely due to the decision by former acting National Director of Public Prosecutions Mokotedi Mpshe to withdraw corruption charges against President Jacob Zuma. Its current acting NDPP, Nomgcobo Jiba, had her own long running Labour Court dispute within the NPA, in which she used an explosive affidavit authored by Mdluli. He claimed that she was the victim of a “gang of criminals in a Mafia-style operation designed and calculated to protect one of their own”.
Mdluli supplied the tapes which helped Jiba restore her career. It has also now emerged that the head of the Integrity Management Unit that probed Breytenbach, Prince Moketedi, is accused of stealing confidential personnel documents and leaking them to former Police Commissioner Jackie Selebi’s legal team. Selebi used the documents in his failed 2008 bid to stop the prosecution against him.
The media went to the High Court in Pretoria to ensure that journalists would have access to Breytenbach’s inquiry. If she was indeed removed as part of an elaborate plot by Jiba to protect Mdluli, the public should be told about it. If Breytenbach herself was influenced in a high profile case involving a politically connected company, it would be a matter of public interest.
Judge Ronel Tolmay agreed, pointing out that whether Breytenbach acted partially or there was interference in the Mdluli prosecution, it was “of the utmost importance that the media have access to this disciplinary hearing”.
“As this dispute deals with important constitutional issues pertaining to the functioning of the NPA, the public has a right to be informed. The NPA must not only pay lip service to the constitutional values that they are bound to uphold, but must be seen to do it. Given the controversy which surrounds Ms Breytenbach’s suspension, permitting the media to attend could restore the credibility of the NPA. If not, we may face a constitutional crisis,” said Judge Tolmay in her ruling.
But regardless of what Chairman Sandile July’s ruling may be in the future, the NPA is already doomed. If he finds that Breytenbach acted in breach of her constitutional duty, it would compromise the integrity of all the cases she has dealt with in her esteemed career. It would also cast a pall on the impartiality of prosecutors in general. Yet if July finds credence in her argument that she was targeted as part of an elaborate plot by her bosses to protect a dubious, politically connected policeman, those revelations would rock the organisation to its very core. The very foundation of the principle of prosecutorial independence would be profoundly damaged either way.
The National Prosecution Authority’s (possibly dirty) laundry is being aired for all to see. Journalists have become unwelcome guests during proceedings, even as communications officials try their best to give an impression of hospitality. But really, they don’t want us there.
The organisation will no doubt be damaged as a result but at least the process is now transparent. The media are watching and informing the public. After all, the NPA is a public organisation that belongs to you and I and if we aren’t allowed in to see what happens in the clinical corridors of the Griffiths and Victoria Mxenge building in Silverton, there truly could be a constitutional crisis.
The integrity of the NPA is at stake.