The targeting of Adv Glynnis Breytenbach

The targeting of Adv Glynnis Breytenbach
Dr Loammi Wolf
08 February 2012


Loammi Wolf says NPA is killing awkward prosecutions by removing competent prosecutors


Threatened suspension of top prosecutor would be arbitrary and unconstitutional
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Sharemaxing the high life....Why is there still No Prosecution in the Sharemax case ??????


The Scuba Scene
High Court applications in Egypt and South Africa, criminal charges and threats of more criminal charges, a luxury lodge development in Mozambique, a Reserve Bank investigation into millions leaving the country and a tycoon’s yacht floating in the Red Sea.

These are the ingredients of yet another chapter unfolding in the Sharemax saga as the riches of the two top managers of the failed and beleaguered property syndication are being exposed.

Revelations of the wealth of former managing director Willie Botha and marketing director André Brand also come in a week that a Free State farmer prepares to apply for the liquidation of the R5bn Sharemax group.

Farmer AC van Zyl of Hoopstad says in his North Gauteng High Court affidavit that he invested R3m in Sharemax’s two biggest property syndications, The Villa and Zambezi Retail Park.

He says the syndications of both The Villa and Zambezi were illegal and have failed. There’s no money to repay him or any of the other investors – as the Reserve Bank has ordered, so the liquidation of Sharemax is the only option.

The liquidation application was due to be heard this week.

Focus shift

While many Sharemax investors are coming to terms with the fact that they’ve lost most, if not all, their investments in Sharemax, the focus has now shifted to the dazzling wealth that Botha and Brand have walked away with in the face of devastated and in some cases, impoverished shareholders.

Botha is fighting battles on all fronts.

Brand has also accused Botha in writing of pocketing R9m of investors’ interest – although he quickly withdrew the statement after Media24 Investigations started asking questions.

Besides his Sharemax woes, Botha is also embroiled in a bitter feud with the man who built his ultra-luxury yacht and who says he invested millions in the yacht as well.

Peet Gericke, owner of Scuba Scene diving in Pretoria, has also gone to war with Botha, accusing him of breach of contract and claiming that Botha intimidated him. He has laid charges at the Brooklyn police station in Pretoria.

At the heart of their dispute is the 43-metre Scuba Scene yacht thought be worth between R120m and R150m, which is owned by Botha’s family trust.

Gericke says he built the luxury yacht over more than four years and that he owns a substantial share.

Dirty laundry

Not so, says Willie Botha, who claims on his yacht’s website that Scuba Scene is fully-owned by the Willem Botha Family Trust. The website, which showed Botha and friends frolicking and diving on the yacht during a recent Red Sea holiday, was this week promptly removed from the web.

The yacht’s Facebook page detailing the feud between Botha and Gericke was removed. Finweek was, however, able to retrieve a copy of the page which gives a fascinating insight into the dispute.

Gericke says his battle with Botha has resulted in four High Court applications in Pretoria and two in Egypt. Litigation continues unabated.

Gericke confirms that he’s been visited by Reserve Bank investigators looking into millions that left the country through his accounts for the construction of the yacht. Much of the money came from Botha, he says, adding the investigators left with a substantial volume of documentation.

Gericke has also consulted with a private investigator in Pretoria, who in turn handed a pile of documents to Willie Hofmeyr, head of the Asset Forfeiture Unit.

Threats of liquidation

On the Facebook page, the Botha camp claims to have loaned R600 000 to Gericke and says if he doesn’t repay the Botha Trust in December, they will liquidate him.

Botha and his advocate visited Egypt in October and say they laid fraud charges against a business partner in Egypt.

The Scuba Scene yacht, which boasts 13 en suite cabins, a crew of 14 and the finest finishes, has been locked down in Hurghada in the Red Sea (see pictures).

Although Gericke still advertises dives from the Scuba Scene on his firm’s website, he confirms that the boat is no longer operational.

Botha also claims that he holds a 50% shareholding in Jupitrax, which owns the Scuba Scene shop in Menlyn Park in Pretoria and a multi-million rand resort development in Mozambique.

Gericke is busy developing the luxury Praia Paraiso coastal estate in Ponta Do Ouro in southern Mozambique. If Botha’s claim to own half of Jupitrax is correct, it would mean he also has a stake in the Praia Paraiso developments, which offer fractional ownership.

Meanwhile, questions are being asked about Brand’s accusation against Botha that the latter had illegally pocketed R9m of investors’ money in October 2009.

Documents pertaining to this payment are now in the hands of the Hawks.

Unanswered questions

Finweek has pieced together the events surrounding the money, and despite assurances by Botha – and suddenly Brand – that there was nothing illegal about the payment, questions remain.

Brand wrote a memo to Botha on 7 July claiming he was owed R24.5m in unpaid commission. He claimed that between March 2007 and February 2011 Botha had earned almost R50m in commission from Brandberg Investments, a property company that does business with Sharemax.

This money does not include the commission they earned from selling shares worth R5bn over 10 years to 40 000 investors.

Brand said he only got around R7m from Brandberg and demands another R24.5m from Botha. Botha claims he never received the memo.

Brand’s claims come after he started an investigation to trace commission that he thought he should have received from Botha but never did.

One of the people he visited was Capicol MD Paul Kyriacou. Capicol was the developer of Zambezi Mall and The Villa. Kyriacou confirmed that he’d told Brand about the R9m he transferred to Botha in October 2009.

“I notified André Brand about this and gave him a copy of all the documentation many months ago,” Kyriacou said. He claims it was for his share in a company he sold to Botha and that there was nothing illegal about it.

Cash up-front

But Brand didn’t agree and wrote the July memo.

Enter Wietz Lourens Nell, a Pretoria businessman who buys and sells property. Brand wanted to get rid of his game farm near Thabazimbi in Limpopo Province, valued R79m according to a 2010 auditor’s report.

Nell found a buyer, and Brand signed a letter agreeing to sell the farm for a mere R21.5m. But, according to Nell, he wanted cash.

The sale never materialised but, says Nell, Brand asked him to help him get his money out of Botha and he gave Nell the July memo.

At around that time, Brand realised that the R9m payment from Capicol to Botha might be questionable. On 26 October he wrote to Botha distancing himself from the transaction saying the money had been wrongfully transferred from Capicol to Botha’s helicopter company.

Brand wrote: “These funds should be transferred to Sharemax for purposes of an interest payment.”

Brand also gave the memo to Nell, who in turn passed it on to the Hawks and the lawyers now bringing the liquidation application. He also made an affidavit about his dealings with Brand, now in Media24 Investigations’ possession. The Hawks will not comment on their investigation.

When Media24 Investigations approached Brand and Botha for comment last week, Botha refused to entertain any questions.

However, at midnight last Friday, both responded by saying that they had spoken to one another and that Brand was withdrawing any allegation against Botha and that he was now satisfied that the money was paid legally to his former business partner.

Brand never denied that the memos were authentic, simply that they had been obtained “dishonestly”.

- Jacques Pauw ( Finweek )
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Now for the rest of the story

The pending suspension of adv Glynnis Breytenbach, who heads the NPA's Pretoria office of the specialised Commercial Crimes Unit and who has made her mark as a graft buster, caused quite a stir. From a constitutional point of view, it will be an infringement upon the principle of prosecuting independence as laid down in section 179(4) of the Constitution should she be suspended from office.

The problem is of a bigger dimension though than this incident. Although state prosecutions should be based on the rule of law with criminal laws applying in general to everybody, political office bearers seem to be immune to prosecution with the exception of a few sacrificial pawns like Yengeni. If one looks at the case of Malema, for example, who is alleged to be involved in corruption and having evaded taxes to the tune of millions and Carl Niehaus, who committed fraud in a number of instances, who were never prosecuted, it is clear that there is a two-class prosecution policy: one for the well-connected ruling class and another for ordinary people.

The main problem is that the Westminster system's separation of powers has been perpetuated although South Africa switched to the constitutional state model in 1994.

During the Codesa deliberations one of the main issues was that people wanted a clear break with the weaknesses of the Westminster system. They no longer wanted a system of parliamentary sovereignty where any legislation - irrespective of whether the laws were fair and just - should be enforced. They no longer wanted a system where criminal prosecutions could be manipulated by the executive. In short, they wanted a written constitution with a bill of rights, containing a limitation clause clearly spelling out how state power should be exercised, and making it possible to declare legislation that is not in conformity with constitutional norms, unconstitutional. This is a system of rule of law instead of rule by law.

It is a well-known fact that excesses of state power, and an abuse of executive power in particular, typically crop up in systems where prosecutors can be controlled by the executive. This is one of the principal weaknesses of the Westminster system. The most extreme forms of abusing power in the sphere of criminal justice are found in authoritarian systems - be that military dictatorships or systems like the socialist regimes of the former East Bloc. A typical feature of these regimes was that judges and prosecutors were executive appointees and that such positions were only open to trusted cadres.

Reports on how the criminal justice system of East Germany functioned leave no doubt about its crudeness and negation of basic human rights. "Political offences" were prosecuted by the Stasi (secret police) with harsh justice being meted out for any form of dissidence. Even a cursory reading of the three decades of articles by Tiziano Terzani on the communist regimes in South East Asia like China, Vietnam and Cambodia, makes clear how prone these systems were to corruption of cadres. Despite the lofty ideals of communism the abuse of power in criminal justice, directly or indirectly controlled by the executive, was endemic. This should make one think twice before these systems are idealised in the revisionist manner, which is currently so en vogue.

Differences between Westminster and constitutional state criminal justice

The constitutional state model foresees three equally strong branches of state power: the legislature, the executive and the administration of justice through prosecution and adjudication (judiciary; prosecutors). Unlike the Westminster system, where prosecutors were historically a split-off from the police as "law-enforcers" who also prosecuted criminal offences, the prosecutors were split-off from the judiciary in Continental European constitutional states to separate the investigation of criminal offences from adjudication.

In the Westminster system, prosecutors are thus part of the executive branch, and not the third branch of state power. As a result, one cannot clearly define criminal prosecutions as part of the administration of justice. One also cannot clearly delineate criminal investigations and prosecutions (criminal law) from executive state administration (administrative law) because the boundaries of the applicable law are completely blurred.

The current Constitution, however, makes clear that the state prosecutors are the second organ next to the judiciary in the third branch of state power. How they should exercise these powers are regulated by Chapter 8 of the Constitution in conjunction with sections 34 (access to the courts) and 35 (rights to fair treatment in criminal investigations, trials and the execution of sentences) of the bill of rights. This must be clearly distinguished from executive powers and the right to just administrative action (section 33 of the bill of rights) that could be taken by such state organs. In the field of public law, the former is regulated by criminal law and the latter by administrative law.

In other words, prosecuting policy which could be made by the national director of the prosecuting authority in terms of section 179(5) of the Constitution should not be confused with executive policy on how to implement powers conferred upon them in terms of legislation.

The minister of justice is therefore not the boss of the prosecutors - even if Mr Zuma seems to espouse this view -- but runs a department of the executive branch, which is obliged to facilitate a liaising role insofar as executive state organs (the police, tax authorities, customs and excise, etc) have to assist in criminal investigations.

One must therefore clearly distinguish the powers of the police force to secure public safety and order in terms of section 205(3) of the Constitution from their assistance to prosecutors to investigate criminal offences. Their powers as part of the executive branch (ie to secure public safety and order) are subject to the norms of just administrative action as laid down by section 33 of the bill of rights. This prohibits police officers, for example, to use excessive force when they exercise their administrative powers.

Criminal investigations, however, are headed by the prosecuting authority as an organ of the third branch of state power. The power to prosecute has explicitly been conferred upon them by section 179(2) of the Constitution and depends on criminal law. Unlike Westminster systems where police officers may also prosecute, this is precluded in constitutional states. Section 13(5) of the SAPS Act of 1995, which confers prosecuting powers upon members of the police force, is therefore obviously unconstitutional.

Prosecutors are bound by the principle of legality and have to invoke criminal law "without fear, favour or prejudice" (section 179(4) of the Constitution). It is therefore not the national director of the NPA who decides whether a specific act is a criminal offence based on some value judgements but the law.

Prosecutors are obliged to prosecute all matters with a reasonable chance on success (the pre-trial prima facie standard) when the elements of a specific crime can be proved. In S v Basson the Constitutional Court held that it is the constitutional obligation of the prosecuting authority "to prosecute those offences that threaten or infringe the rights of citizens".

In Nkdimeng v National Director of Public Prosecutions, the Gauteng High Court equally stressed the right of victims and held that it would be unconstitutional if the prosecuting authority would refuse to prosecute "where there is a strong case and adequate evidence to do so".

If the prosecutors should be allowed to drop charges in a prima facie case, this would boil down to a de facto acquittal without a trial. This, however, would constitute an usurpation of judicial power which is an unconstitutional practice in terms of section 41(1)(f) of the Constitution.

If prosecutors would refuse to prosecute a person in a prima facie case, a victim could therefore invoke section 34 of the bill of rights to get access to the courts and thus force the prosecutors to institute criminal proceedings in a specific matter. Along this route one can say that the state organ, who exercises a kind of oversight over the prosecutors to ensure that they do not drop criminal charges arbitrarily, is the judiciary.

It is laudable that Dene Smuts of the Democratic Alliance in her defence of adv Breytenbach, has told the top officials of the NPA that they should remember that the NPA is accountable to Parliament. Smuts relied on section 35 of the NPA Act of 1998. This provision, however, is just as unconstitutional as section 13(5) of the SAPS Act, which conferred prosecuting powers upon the police. In terms of section 55(2) of the Constitution, Parliament has the power to oversee state organs exercising executive power. The administration of justice (ie prosecution and adjudication) is not an executive power though.

Illegal orders to drop charges or purposely aborting cases

What is at issue, is that adv Breytenbach has been taken off a fraud case by the former head of the NPA, Menzi Simelane just before he lost office, involving Imperial Crown Trading in the Kumba Iron Ore case r - alleged due to pressure by well-connected persons.

She was apparently also forced not to pursue a fraud and murder case involving the crime intelligence boss Richard Mduli by the new director of the Commercial Crimes Unit, Lawrence Mrwebi. Apparently Mrwebi is also due to give evidence in another matter where she is the prosecutor. He authorised a transaction of his colleague Ledwaba during his time as head of the Scorpions in Natal, in which the latter siphoned off over R500.000 from a confidential funds of the Scorpions.

In its letter to adv Breytenbach, the NPA cited only an alleged abuse of powers in the criminal investigation of the multibillion-rand Sishen iron ore mining deal. A portion of the prospecting rights to the mine was initially awarded to Imperial Crown Trading, whose beneficiaries include President Jacob Zuma's son, Duduzane, Deputy President Kgalema Motlanthe's partner, Gugu Mtshali, and Jagdish Parekh, who heads the Gupta family's business empire. After a challenge by Kumba Iron Ore, the award to Imperial was invalidated by the Pretoria High Court last year.

It has been alleged that such tactics are employed when the top structure of the NPA want a court case to fail. This also happened in the case of druglord Glenn Agliotti, when Gerrie Nel was taken off the case. Simelane also instructed Gauteng's acting deputy director of public prosecutions, Gladstone Maema, to replace Gerrie Nel, as prosecutor in Mphego's trial. Nel charged Mphego, a former head of the SAPS's crime intelligence unit, for defeating the ends of justice in the Selebi trial. Shortly afterwards the case was struck off the role. Mphego was apparently also involved in passing the disreputable spy tapes on to Zuma's lawyer, Michael Hulley, which then served as a reason to drop charges against Zuma.

Breytenbach's lawyer, Gerhard Wagenaar, said that his client had denied abusing her powers and had written to the NPA to request more details about the alleged abuse.

The question is therefore whether directors of the NPA may give orders to prosecutors to drop charges in a prima facie case or whether they may cause the deliberate abortion of a prosecution by taking successful prosecutors, who investigated a matter and know all its details, off a case?

The directors of the NPA are bound by the principle of legality and must invoke the law in an unbiased and scrupulous manner. The rule of law is cemented by section 1(c) in conjunction with section 179(4) of the Constitution. With such behaviour they would forsake their constitutional duties. They themselves could be charged for improper interference with criminal prosecutions (section 32(1)(b) read with section 41(1) of the NPA Act). Originally such interference was sanctioned with up to ten years imprisonment, but at the behest of the executive the legislature watered this down to a maximum of two years' imprisonment.

Such improper orders would also be a ground to remove the national director from office if he would be involved in such arbitrary dropping of charges or wilfully abort cases by taking prosecutors, who investigated a specific off cases with the sole purpose that the case should fail (section 12(6)(a)(i), (ii) and (iv) of the NPA Act). The point is just that this is not likely to happen if the President who is supposed to do that is himself a beneficiary of such improper action. It is doubtful whether this provision in its current form would survive the scrutiny of its constitutionality, because it transgresses the separation of powers.

The Constitution demands impartiality from judges and prosecutors and make them subject only to the Constitution and the law. There are obviously differences between judicial independence compared to prosecuting independence though.

Judicial independence means that there is no internal hierarchic structure in the judiciary where a judge president or chief justice may give orders to other judges how to adjudicate in a specific matter. The different tiers of courts exercise judicial power in their respective jurisdictions and their powers are regulated by the Constitution, the law and the system of precedent (stare decisis), where lower courts are bound by legal rules that crystallised in judgments of higher courts.

Prosecuting independence primarily denotes independence from political influence of the justice minister and the executive branch. In S v Basson a unanimous bench of the Constitutional Court stressed the independence of the prosecuting authority as state organ to institute criminal proceedings under section 179 of the Constitution on behalf of the state. Although the internal organisation of the prosecuting authority is hierarchically structured to enable an efficient administration of criminal prosecutions, all prosecuting decisions are still subject to the principle of legality. It would therefore be an unconstitutional exercise of power if a director of public prosecutions would force prosecutors to drop charges in prima facie cases.

In terms of section 32(2) of the NPA Act all prosecutors have to take an oath that they will enforce criminal law impartially and will uphold and protect the Constitution and rights entrenched by the bill of rights. If adv Breytenbach's superiors would therefore force her to break her oath, this not only has consequences as an unfair labour-law practice because it forces her not to perform her duties properly, but can be contested at a constitutional level as well. She would be able to take the matter to the Constitutional Court on the basis of a dispute concerning the powers and functions of a state organ (section 167(4)(a) of the Constitution.)

The appeal of the Democratic Alliance's case about the legality of dropping of charges against Zuma at the time when he was president of the ANC shortly before the 2009 elections and which made the way free for him to run as President, has been scheduled for a hearing in the Supreme Court of Appeal on 15 February 2012. This will be a litmus test for impartial state prosecutions and upholding the rule of law.

* Loammi Wolf specialises in public law and has a special interest in constitutionalism and state organisation law. She obtained an LLM at the University of Virginia as well as a doctorate in constitutional law at Unisa. Currently she runs the initiative Democracy for Peace. She published extensive research on the topic of prosecuting independence.


Articles:

Why is NPA trying to suspend Glynnis Breytenbach? - Dene Smuts
4 responses to this article


Executive-corrupt-interference.....

Prior to my & Harper's detention without trial in Chikurubi by the ZANU faction of the CIO (which even in the early 1980's were operating under a dual chain of command), the State (ZANU CIO) ordered Customs NOT to do investigative & forensic work on . .more the numerous the stolen SA BMWs & Mercs piling up at the Condep State Warehouse.

When I queried under what law such orders were deployed I was told "Under directive of the Legal Adviser to the Minister of State Security, comrade JOHN NGARA. As there was no such provision in the Customs & Excise Act we ignored the CIO unlawful & criminally interfering directive.

Some months later, when the CIO simply helped themselves to a fleet of these stolen vehicles from the Customs Warehouse, they were made to return them over a stand-off between the Customs Dept, Ministry of Finance & State Security.

A few weeks later the CIO took their revenge by labelling us as spies (& our two years in Chikurubi began). The reasons for our detention were provided by cde JOHN NGARA. The CIO legal team was advised by JOHN NGARA - all under instruction of MEYNARD MUSARIRI (then Harare Provincial CIO 2 i/c to the white OC Mr MARILLIER - who has since told me in London that although i/c Harare CIO, he was kept in the dark over our detention - and later resigned from CIO).

Part 2/
by John Austin on February 09 2012, 03:04
Executive-corrupt-interference..... Part 2....

contd....

When the ZANU appointed Revue Tribunal finally ruled for us to be released, following three Supreme Court Orders of actual release, the then Prime Minister (MUGABE) with cabinet consultation ruled we continue to be detained . .more anyway.... & gazetted it accordingly (an Executive over-ride provided in the inherited Rhodesian Regulations which had NEVER before been used - yes, "never").

Talk about criminal spite & malicious abuse of power..... but there IS a strategy to this.

You see, if you cow the brave, the upright, the uncorrupt - bully them publicly & with impunity..... the subliminal message is not lost on the not so brave, ne. Pick out the leaders of competence & integrity.... and pop them off, one-by-one....

About 8 months after our release, cde JOHN NGARA was killed mysteriously in a vehicle accident with a lorry on the Bulawayo road out of Harare (some opined divine intervention, others opined ZANU in-fighting leading to execution). Whatever the truth on the real cause of NGARA's demise, he was buried in his local "Heroes Acre" with full ZANU honours.... and Robert MUGABE himself travelled to the NGARA village tp pay his respects.

Take note of these events SA, and the above article. The writing is writ large on the wall of SA's ANCpf politics - you just need to read it.

ChikurubiZizoReVanhu

by John Austin on February 09 2012, 03:20
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ANCpf....&the-Harare-model.....

.....talk about de-ja-voodoo ! ! !

AND yet, it has all been predictable for a long time in SA. The warning signs have been shouting at SA for about ten years, now.....

BUT SA has chosen to ignore them & hope for the best.

BIG mistake dear nation. The criminal cabal sees "hope" & "good will" as pure weakness to be exploited. While the nation has been wishfully hoping & wringing its collective hands, the crooks in ANCpf have not sat idly by.

That criminal investment is now reaping its rewards.

Those rewards are NOT for South Africans, black or white, count on it.

BENT Police Commissioners (TWO now), bent NDPP (carefully groomed in exile in Harare, the son of a criminally disgraced lawyer father), BENT judges, BENT departmental heads.....

Keep on BENDING everything that works as it should and, ultimately, it BREAKS, ne ! !

ON THE BRINK it now is in South Africa - no doubt of that.

Q:- is it already too late ? ?

A:- if it looks like, behaves like, acts like, walks like, talks like, then IT IS.

TIP:- Media Muzzling Complete = JOB DONE, ne ?

ChikurubiZizoReVanhu :)
by John Austin on February 09 2012, 03:23



Menzi Simelane's disproportionate involvement in politically sensitive matters

Again Menzi Simelane is again right in the thick of it, sorting out political favors for his gabbas.

Although it has since been determined that Menzi is not suitable for the post of DPP it does confirm the modus operandi of the ANC to place . .more pliable cadres in positions of power to do their bidding regardless of ethical practice, the constitution or public interest. Party first, apparently also means the constitution is second.


by Oblio on February 09 2012, 04:28
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