Monday, August 13, 2012
Breytenbach: NPA official faces grilling
Breytenbach: NPA official faces grilling
Glynnis Breytenbach (File, Beeld)
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Johannesburg - An NPA official is expected to be cross-examined about suspended prosecutor Glynnis Breytenbach's laptop when her disciplinary inquiry resumes in Pretoria on Tuesday.
Khaya Xaba, a risk specialist at the National Prosecuting Authority, testified last Monday that he handed Breytenbach a letter of suspension on 30 April.
He was supposed to collect her work laptop, keys, and access discs at the same time.
However, Xaba and Breytenbach's attorney Gerhard Wagenaar disagreed about the handing over of the laptop.
Xaba allowed Breytenbach to keep the laptop so her IT specialist could delete files she claimed were of a personal nature from its hard drive. The laptop was handed to the NPA two days later.
Among the charges Breytenbach faces are gross insubordination and improper conduct, for allegedly not handing her work laptop to the NPA, and for having information on it deleted.
Breytenbach argued she did not hand over the computer because of fears about an invasion of her privacy and because she had not been given any information about the charges against her.
She argued that the deleted information had always been available on the NPA's server.
Breytenbach, who was suspended as regional head of the specialised commercial crime unit, has pleaded not guilty to 16 charges brought against her by the NPA, at the hearing at its offices in Silverton.
The NPA said it suspended Breytenbach for failing to act impartially in her investigation of a dispute between Imperial Crown Trading (ICT) and Sishen/Kumba Iron Ore over mining rights.
However, Breytenbach argued that acting National Director of Public Prosecutions Nomgcobo Jiba suspended her in an attempt to stop her from prosecuting former police crime intelligence boss Richard Mdluli on fraud and other charges.
Last year, Mdluli faced a raft of fraud and corruption charges relating to the alleged misuse of a secret crime intelligence fund to buy luxury vehicles. He also faced a charge of murder relating to the death of an ex-lover's husband.
These charges led to his initial suspension, but they were withdrawn and he was reinstated in December before being suspended again in May this year.
Mdluli appealed against his suspension in the Johannesburg Labour Court, but it decided that he should remain suspended until he had also filed an application for leave to appeal an interim order -- which was granted by the High Court in Pretoria on June 6, to Freedom Under Law -- that he be suspended and not be allowed to do police work.
Breytenbach is charged with bringing the NPA into disrepute by speaking to the media, either directly or via her attorney, without authorisation.
Another charge she faces is that of performing work outside the NPA, for allegedly renting out a flat and running a horse stabling business.
In an application for car finance in 2009, Breytenbach listed under "other income" that she earned R4000 a month for renting out a flat and stabling a horse.
Her counsel Wim Trengove SC pointed out in cross-examination that renting out a flat did not amount to performing remunerative work.
Breytenbach had stabled a horse for a friend's child which had cost her R2 500 a month, although the friend could only contribute R1000 towards this, he said.
Trengove called the reading of the car finance e-mail an abuse of Breytenbach's constitutional right to privacy of her communication, and accused the NPA of trawling through her e-mails to "rustle up" charges.
Trengove contended that Breytenbach had not been informed of the charges against her and was not given a chance to defend them before she was suspended.
Hercules Wasserman, acting senior manager of the NPA's integrity management unit, admitted under cross-examination that the first time Breytenbach received partial details of the allegations against her was on 18 April.
He admitted Breytenbach was not told of the full case against her.
Jiba made the decision to suspend her on 23 April, despite the fact that Wasserman had given Breytenbach until 25 April to respond to the allegations.
Her disciplinary resumes on Tuesday at 10:00.
Read more on: npa | glynnis breytenbach | nomgcobo jiba | richard mdluli
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Tempers flare at Breytenbach hearing
- Prosecutor Glynnis Breytenbach "turned a blind eye" in investigating a mineral rights dispute, a witness told her disciplinary hearing on Wednesday.
"This was an absolute turning of a blind eye to anything ICT [Imperial Crown Trading] had to say," Ronald Mendelow said.
Mendelow, who is the lawyer for ICT, was testifying for the National Prosecuting Authority (NPA), at its offices in Silverton, Pretoria.
The NPA said it suspended Breytenbach for failing to act impartially in her investigation of a dispute between ICT and Sishen/Kumba Iron Ore over mineral rights.
"[Breytenbach] shows no interest at all in the progress of that investigation... which is really part-and-parcel of the same investigation," Mendelow said.
Breytenbach denied this.
The investigation she allegedly ignored involved a complaint made by the department of mineral resources (DMR) against Sishen.
The DMR accused Sishen of fraud in how it submitted an application for mineral rights.
Instead, Breytenbach focused only on investigating Sishen's complaint that ICT had forged a title deed in its application for prospecting rights, Mendelow said.
"This was clearly a one-sided investigation intent only on nailing ICT."
Mendelow said he had visited the Hawks officer investigating the DMR complaint in February this year and found only one affidavit in the file. Mendelow said the officer told him no prosecutor had contacted him to give him instructions.
The DMR complaint had "been left in the dark to mould".
He said Breytenbach should have taken responsibility for the DMR case, as it was the flipside of the Sishen case.
This led to arguments about whether Breytenbach should allocate herself cases, or whether she should only take on a case after being approached by investigating officers.
Breytenbach's counsel Wim Trengove said: "There is no basis in the evidence for an assertion that she should have assumed responsibility for the complaint that the police didn't bring to her."
He later added: "The DMR case never landed on her desk."
According to an affidavit by Breytenbach, the DMR investigation was allocated to another prosecutor.
Earlier in the day, Mendelow said Breytenbach had worked too closely with Sishen's lawyer Mike Hellens.
"The legal representatives of a complainant should be kept at arm's length," he said.
Mendelow sent a letter of complaint about Breytenbach to the then National Director of Public Prosecutions, Menzi Simelane, on 31 October last year, alleging she favoured Sishen in her probe and had an improper relationship with Hellens.
"Not only was advocate Hellens... drafting the key documents for the prosecution, he was also drafting various key... letters for the police unit," Mendelow said.
Hellens helped draft affidavits used by the police in their investigations.
Breytenbach said it was standard practice in a complex commercial case to call on the help of lawyers who were party to the case. However, Mendelow said the matter was not complex, but a relatively simple fraud case.
The dispute involves a 21.4% mining right in the Sishen iron ore mine in the Northern Cape.
Sishen Iron Ore Company, a subsidiary of Kumba Iron Ore Limited, which owns the rest of the rights in the Sishen mine, applied for the 21.4% stake.
However, ICT also applied for a prospecting right in the 21.4% stake, and was granted it. This led to a court battle involving Kumba, ICT and the mineral resources department.
The High Court in Pretoria then granted Kumba Iron Ore exclusive rights to the Sishen mine. However, in May this year the court granted ICT and the mineral resources department leave to appeal the ruling.
The matter was pending before the Supreme Court of Appeal.
Breytenbach was suspended as regional head of the NPA's specialised commercial crime unit on April 30 this year.
She has argued that acting National Director of Public Prosecutions Nomgcobo Jiba suspended her in an attempt to stop her from prosecuting former police crime intelligence boss Richard Mdluli on fraud and other charges.
Breytenbach has pleaded not guilty to 16 charges brought against her by the NPA.
The hearing continues at 09:00 on Thursday.
Read more on: npa | glynnis breytenbach
Drama at Breytenbach hearing
August 17 2012 at 01:48pm
The chairman in Glynnis Breytenbach's disciplinary inquiry recused himself on Friday after accusing the NPA of letting a witness run its case.
“I'm convinced that this application... it comes from Mr Mendelow,” chairman Sandile July said.
“I have never heard (of) a situation where a complainant would be in charge of a hearing, telling the employer how the hearing should go.”
He was referring to Ronald Mendelow, a lawyer for Imperial Crown Trading (ICT), who had testified from Tuesday to Thursday at the National Prosecuting Authority's (NPA) offices in Silverton, Pretoria.
On Thursday, the NPA said it would apply for the removal of July. July said on Friday he would recuse himself.
NPA counsel William Mokhari said July had to be removed as the firm he worked for, Werksmans, had represented steel company ArcelorMittal SA and that this could create a perception of bias.
The NPA said it suspended Breytenbach for failing to act impartially in her investigation of a dispute between ICT and Sishen/Kumba Iron Ore over mining rights in the Northern Cape.
The mining rights in question used to belong to ArcelorMittal SA, which had an interest in who would take over the rights.
Mendelow sent a letter of complaint about Breytenbach to the then National Director of Public Prosecutions Menzi Simelane on October 31 last year, alleging she favoured Sishen in her probe.
July said the NPA had not called for his removal because of his links to Werksmans.
He said he had told both parties of Werksman's work for ArcelorMittal, and that he had explained he was not involved in that case in any way.
At the start of the hearing on July 23, both parties said this would not be a problem.
July said Mendelow wanted him removed because he had asked questions during Mendelow's testimony on Wednesday.
“This has everything to do with the questions I asked on August 14 when Mr Mendelow was testifying,” July said.
He said the affidavit filed by the NPA calling for his removal mentioned questions he had asked. He said the affidavit's facts were incorrect and that he might challenge it.
He said his questions had made Mendelow uncomfortable.
“I hope this hearing going forward is not going to be controlled by people who happen to be complainants and then tell the employer how to run the disciplinary,” July said.
It was his right and responsibility as chairman to show an interest, he said.
Breytenbach's counsel, Wim Trengove SC called the NPA's application a “travesty of justice” in “a long line of abuses by the NPA”.
He said July had been gentle with Mendelow.
“Your role was... extraordinarily gentle and tolerant of a witness who came here, took control of his own evidence, and gave us a lecture over three days of how the suspect in a serious criminal case believes the investigation against him should be undertaken,” Trengove said.
He called on the NPA to drop the case against Breytenbach.
“It is time for the national director of public prosecutions to acknowledge that this has been a mistake, for them to reinstate Ms Breytenbach and terminate this inquiry.”
A new chairman would be appointed soon, Mokhari said.
July was the second chairman, after Barry Madolo recused himself.
Mohari said Madolo had recused himself when he learned of Breytenbach's defence in the case.
Breytenbach said acting National Director of Public Prosecutions Nomgcobo Jiba suspended her in an attempt to stop her from prosecuting former police crime intelligence boss Richard Mdluli on fraud and other charges.
Madolo had sat in a meeting with senior NPA management where Mdluli had been discussed, Mokhari said.
Breytenbach was suspended as regional head of the NPA's specialised commercial crime unit on April 30.
She has pleaded not guilty to all 16 charges laid against her by the NPA.
It was not immediately known when the inquiry would resume. - Sapa