Sunday, January 26, 2014

Blue Monday in store for government-employed DA listers and see "Who''s afraid of Advocate Glynnis Breytenbach "

Blue Monday in store for government-employed DA listers
26 JAN 2014 14:43 PHILLIP DE WET

Ricardo Mackenzie, Pule Thole, and Glynnis Breytenbach will face unhappy employers before riding the Democratic Alliance train into Parliament.
It won't be smooth sailing for three government officials, including Glynnis Breytenbach, who are on the DA's candidate list for the general elections. (David Harrison, M&G)
One has already been called a spy, one will face highly suspicious colleagues, and the third will likely see a whole new category of allegations against her.

By the middle of the year, they will very likely have special legal privileges and will be given the honorific "honourable" as members of Parliament for the Democratic Alliance (DA). But first ministerial staffer Ricardo Mackenzie, police brigadier Pule Thole, and public prosecutor Glynnis Breytenbach are all going to have a tough last few weeks – or perhaps just days – in their current government jobs.

Read more: DA list: Defectors and a cop but no journalists (yet)
"To us there is no turning back, trust has been irrevocably damaged, the ministry is reviewing its relationship with him," said Paena Galane, spokesperson for sports minister Fikile Mbalula on the weekend, on what he termed the "coming out" of Mackenzie. "We long suspected that he is a DA mole in the minister office planted amongst others with the ulterior motive of disrupting our programmes and hurting our movement, the ANC."

Mackenzie, a former staffer for Thabo Mbeki and ANC members, is technically still the private secretary to Mbalula, a position that makes for access to the most sensitive information that flows through his office. On Friday he informed a superior that he was joining the DA, and would probably hold office for the party. On Saturday the DA trumpeted his defection. The response from his employer did not skimp on the sarcasm.

"We wish him all the best, as we believe he will be a useful 'rat' for us in the future," Galane said on behalf of the ministry.

But Mackenzie at least has some distance from his putative boss. He was seconded to the World Anti-Doping Agency some months ago. The sports ministry now says that was done because his duplicity had been detected and he was moved to isolate him, although Mackenzie’s own account is rather different.

Tough working days ahead
Pule Thole does not have the benefit of distance. The South African Police Service brigadier said on Saturday he would tender his resignation in time to leave the police force by April, but indications are that he’ll find his job tough until then.

"We have enough politics here just with the MK thing and the ANC factions," said a police member of similar rank on Sunday. Although he dismissed Thole as "a nobody", he also said the brigadier could expect a bumpy ride of office politics not dissimilar to that experienced by the managers of police crime intelligence in recent years.

"If you are a brigadier you know things. There are things people don’t want to hear about in [Parliament]. You think he’s not going be discredited before he leaves?"

While both Mackenzie and Thole have been essentially dismissed by ANC loyalists as minor figures, Glynnis Breytenbach already has national stature, and her inclusion on the DA ticket will be a sore point in a National Prosecuting Authority (NPA) regularly accused of allowing political consideration to sway decisions in criminal matters.

Political intentions
Breytenbach was initially treated as a "confidential candidate" in the DA list released on Saturday, but that secrecy did not last the day. By Sunday both she and the party had confirmed her inclusion.

The party said it looked forward "to what will undoubtedly be an exciting election campaign and partnership with this incredibly talented candidate."

Breytenbach will be leaving a post that she had regained – possibly only temporarily – despite a war of attrition fought by the NPA. Breytenbach has steadfastly claimed her disciplinary and legal troubles with her employer stemmed from interference in the failed attempt to prosecute crime intelligence head Richard Mdluli.

While she is due to work out a notice period before leaving the NPA, an insider said finding a mechanism for her to vacate her position sooner than later would suit all involved. But her move into politics would also cement the belief that her motivations in pursuing cases involving government officials or empowerment deals had not always been pure.

"She can tell us she wasn’t working towards an office, but we don’t have to believe her."

Phillip de Wet is an associate editor at the Mail & Guardian.
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Who's afraid of Glynnis Breytenbach?

NEWS ANALYSIS: Breytenbach’s return spells trouble for Zuma’s NPA cohorts
[Photo: Delwyn Verasamy]
The National Prosecuting Authority’s (NPA’s) decision to challenge its humiliating defeat in prosecutor Glynnis Breytenbach’s disciplinary hearing appears to have all the finesse of a Gupta wedding.

Almost no one believes there is any chance of reversing the 15-0 drubbing it received—every charge was thrown out—but, like the politically connected business family, the Guptas, the NPA has gone too far for embarrassment.

Those calling the shots at the NPA know they cannot afford to let Breytenbach back in. Here’s why:

Breytenbach’s return to lead the Pretoria Specialised Commercial Crime Unit would kick-start two stalled cases she took personal control of before her suspension—the Richard Mdluli fraud case and the Imperial Crown Trading 289 (ICT) fraud case.

Her return would destabilise a cabal of decision-makers at the apex of the NPA, including the acting national director of public prosecutions, Nomgcobo Jiba, and the national head of commercial crime, Lawrence Mrwebi, who appear to have been positioned by Zuma to protect his interests.

Jiba has been key in blocking efforts by the Democratic Alliance to force the NPA to release the Zuma “spy tapes” that formed the basis for the NPA’s decision to withdraw corruption charges against Zuma. The DA needs the tapes to launch a bid to overturn that decision.

Zuma’s delay in appointing a permanent director is emblematic of his dilemma. He appears to believe he can rely on Jiba and to be less sure he can rely on anyone else. Jiba herself cannot be appointed because of her own disciplinary history.

Mrwebi has been central to protecting Mdluli and other political or business allies of Zuma or his family.

The NPA says it must challenge the decision because the findings “have serious implications on the enforcement of discipline in the NPA”.

The organisation’s mandarins have a point here: if they accept Breytenbach’s victory and allow her to return they risk a wider revolt against the political deference and legal illiteracy that have come to characterise the NPA.


Breytenbach maintained from the beginning that it was her resolve to prosecute him that triggered her suspension, not the complaint about her from ICT, which was proffered as the reason.

Why is Mdluli so important, and what is the nexus between Zuma, Mdluli, Jiba and Mrwebi?

Mdluli was appointed in July 2009 to head the police’s crime intelligence division. The political importance of this post was made clear by the deep involvement of crime intelligence in the battle to discredit the elite Scorpions investigative unit and especially their case against former police commissioner Jackie Selebi.

In 2007, Mdluli (then deputy provincial commissioner for Gauteng) led the investigation of charges against Gerrie Nel, the head of the Scorpions in Gauteng. Nel was arrested in Pretoria on January 8 2008 but the NPA declined to proceed with the case. The arrest was widely seen as an attempt to torpedo the prosecution of Selebi.

Jiba, then a senior advocate in Nel’s office, had been intimately involved with the campaign to bring down Nel, partly, it seems, because she held Nel responsible for the prosecution of her husband, Booker Nhantsi.

Nhantsi was a deputy director in the Eastern Cape Scorpions, but was convicted in 2005 of dipping into trust funds in 2003 when he was still an attorney.

Mutual back scratching
Jiba was suspended and charged departmentally for her clandestine efforts to help Mdluli to secure the arrest of Nel. Mdluli, in turn, provided an affidavit to Jiba, to use in her failed 2008 Labour Court bid to stop NPA disciplinary proceedings against her.

Mdluli claimed she was a victim of an NPA conspiracy to protect Nel and attached a transcript from a bugged cellphone conversation of
then-Scorpions boss Leonard McCarthy in an attempt to back up his allegations.

This was the first disclosure of some of the crime intelligence intercepts that were later leaked to Zuma’s attorney Michael Hulley and provided the foundation for the withdrawal of corruption charges against Zuma in April 2009.

Although there is no evidence that Mdluli leaked the Zuma tapes, he was one of the few individuals who had access to them.

In late 2009, Jiba was allowed to return to the NPA, seemingly as part of a number of concessions to the Zuma era adopted by acting director of prosecutions Mokotedi Mpshe.

In January 2010, Zuma appointed Jiba as a deputy to his new prosecutions director Menzi Simelane. In September that year, Zuma expunged her husband’s criminal record.

Assume the mantle
In December 2011, following the ruling by Supreme Court of Appeal overturning the appointment of Simelane, Zuma made her acting director, a post she still occupies.

Mdluli was appointed as national head of the crime intelligence division from July 1 2009, after an interview with four of Zuma’s close Cabinet allies.

The acting national commissioner Tim Williams protested to Police Minister Nathi Mthethwa at the time and later described Mdluli’s appointment as politically motivated and “irregular”.

Mdluli’s opponents in the police proceeded to resurrect the investigation of the 1999 murder of Oupa Ramogibe, the husband of Mdluli’s former lover. But Mdluli did not sit back.

In November 2010, Mdluli compiled a dossier for Zuma in which he pledged his political loyalty, claimed the murder investigation was a plot by former Mbeki loyalists, and provided a so-called intelligence report that fingered Zuma’s alleged political enemies.

In March 2011, Mdluli was arrested for the Ramogibe murder.

Missing funds
Breytenbach was not involved in this investigation, which was sidelined when the NPA referred the matter to an inquest, which later found Mdluli could not be linked to the murder.

But Mdluli’s temporary arrest led members of crime intelligence to come forward with evidence that led to the investigation of abuses of the police covert fund.

Mdluli was arrested in October 2011 on fraud and corruption charges relating to the purchase of covert police vehicles and it was this case that Breytenbach took control of.

She immediately came into conflict with her new boss, Mrwebi, appointed by Zuma as national head of the Specialised Commercial Crime Unit on November 25.

From the start, Mrwebi appeared to believe he operated under a special mandate to deal with the Mdluli matter.

On November 17 2011, Mdluli’s attorneys made representations to Mrwebi, in his capacity as head of the unit, asking for the charges to be withdrawn.
It was odd because he had not yet been formally appointed to the post.

Mrwebi gets stuck in
Mrwebi demanded a full report on the case, which Breytenbach provided, urging that the prosecution proceed and arguing that Mdluli’s representations were based on wild and unsubstantiated allegations of a conspiracy.

Mrwebi brushed this aside and wrote to Mdluli’s lawyers informing them he had considered their representations and that he had decided that the charges be withdrawn.

The only reason Mrwebi advanced for his decision was that, in his view, the investigation of the fraud charges against Mdluli was the exclusive preserve of the inspector general of intelligence, Faith Radebe, a view contradicting that of Radebe herself.

In December 2011, Mrwebi took over the management of the ICT complaint against Breytenbach and in January 2012 he submitted a memo to Jiba recommending that Breytenbach be suspended and criminally charged.

In April, Breytenbach delivered an ultimatum to Jiba threatening to take the acting director on review if she did not reverse Mrwebi’s decision on Mdluli.

Jiba signed Breyten­bach’s letter of suspension on April 23.

A year later, Mdluli remains on ice, thanks only to the intervention of the rights organisation, Freedom Under Law, which obtained an interim interdict preventing his reinstatement. But he is still touted to return to a top police position, a prospect that Breytenbach’s return to the NPA might impede.


Breytenbach’s other key “political” case was a criminal complaint laid against ICT.

It originated from a dispute between the Sishen Iron Ore Company, the steel company ArcelorMittal, ICT and the department of mineral resources over mining rights to one of the most lucrative iron ore mines in the world in the Kuruman district in the Northern Cape.

Sishen held 78.6% and ArcelorMittal 21.4% of the old- order iron ore mining rights.

Sishen operated the mine in terms of an agreement that gave ArcelorMittal access to ore at a preferential price.

A new Mineral and Petroleum Resources Development Act gave companies until April 30 2009 to covert or lose their old order rights. Sishen converted its rights and, when it appeared that ArcelorMittal would neglect to do so, Sishen prepared an application to convert the 21.4% on its own behalf.

On making its application, Sishen discovered that an unknown shelf company, ICT, had prepared a competing application, which was later given preference by the department.

ICT was politically influential: it included Deputy President Kgalema Motlanthe’s partner Gugu Mtshali and a group of politically connected, predominantly Northern Cape businesspeople.

Sishen challenged the award of the minority rights to ICT and, in doing so, gained access to ICT’s application. It had features that suggested it had been fraudulently inserted into the process. Sishen laid a charge against ICT, which ended up on Breytenbach’s desk.

By that time, a new political element had emerged.

As Business Day reported, when the saga broke in early March 2010, the key players were in London on an official state visit. It said: “One senior Kumba source told … of informal conversations in London over the mess, held between Anglo American chief executive Cynthia Carroll … [ArcelorMittal South Africa chief Nonkululeko] Nyembezi-Heita, Ajay Gupta and Mr Zuma.”

The report said Zuma wanted to know how it might be possible for “everyone to win”.

Just days later, on March 12, Pragat Investments (Pty) became a 50% shareholder in ICT. Pragat was owned and controlled by Jagdish Parekh, a senior executive in a number of companies falling under the control of the Gupta family.

ICT has always denied the Guptas have any direct or indirect interest in ICT, but their broader involvement in the Sishen deal became clear in August 2010 when ArcelorMittal announced it would buy ICT and simultaneously enter an empowerment deal with a consortium that included the Guptas and Zuma’s son, Duduzane.

The controversy and the Decem­ber 2011 court ruling that overruled the department’s award of rights to ICT have put paid to the deal but not to the criminal investigation and the manipulations it might reveal.

Since Breytenbach’s removal from the case, following a complaint to the NPA by ICT, the investigation appears to have been stymied.


Meanwhile, new allegations have emerged that Mrwebi interfered in a case where he had a clear conflict of interest.

In August last year, the Mail & Guardian reported that, in December 2011, Mrwebi attempted to halt a search and seizure operation being carried out by Colonel Frans Kola of 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.

At the time, the M&G could not confirm the allegations of Mrwebi’s interference and the NPA refused to answer questions about it, saying it would “not be drawn into responding to gossip-mongering”.

But since then, it has seen an affidavit by advocate Vickqus Nathi Mncube, the NPA official in charge of the investigation.

Mrwebi's personal touch
The affidavit confirms that account—and goes much further.

It states: “On the 2nd of December 2011 at about 6h00 I received a tele­phone call on my cellphone from Lt Col Kola. He informed me that a person who claimed to be an NPA official and had introduced himself as Lawrence had called him and had instructed them not to continue with the execution of the search and ­seizure warrants.

“Kola decided to call me with a view to find out if I was aware of this instruction. I informed Kola that no NPA official has a right to stop them from performing their duties.”

Mncube says that at about 7.30am he received a call from Mrwebi requesting to have an urgent meeting. “After a few minutes he arrived at my office. He informed me that he had just received a phone call from his friend Mr Terence Joubert …

“According to advocate Mrwebi, Terence was not happy with the fact that the police were raiding his house and wanted them to stop. Advocate Mrwebi told me that he had called Kola after receiving Kola’s cellphone number from Mr Terence Joubert …

'Let the law take its course'
“Advocate Mrwebi questioned me about the warrants. He wanted to know if indeed the police were in possession of search warrants. He was of the view that it was not necessary for the warrants to be executed … I advised him to allow the legal process to take its course and not interfere. He was visibly upset by the fact that I questioned his action.”

The affidavit discloses that Mrwebi had a serious conflict of interest—he admitted that Joubert was his “best friend” and that he had at first represented, then assisted, Joubert with an NPA disciplinary matter, which involved some of the allegations being investigated by Kola.

It claims that, after Joubert’s arrest, Mrwebi attempted to instruct Mncube to go back to court to change Joubert’s bail conditions.

The affidavit claims that, in May 2012, Mncube reported Mrwebi’s interference to Jiba but that she did not take this seriously. It discloses that, despite his obvious conflict of interest in the matter, Mrwebi interfered further and, in November 2012, removed Mncube from the case involving Joubert.

Mncube prepared a formal report on Mrwebi’s interference and submitted it to Jiba. He recommended that the matter be referred to the police for investigation, but he never received a response.

Mncube declined to comment, but did not dispute the existence of the affidavit. The NPA failed to respond to detailed questions.

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NPA prosecutor’s supension upheld

March 25 2013 at 05:22pm

Independent Newspapers

Prosecutor Glynnis Breytenbach.
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Johannesburg -NPA prosecutor Glynnis Breytenbach's suspension was both procedurally and substantively fair, the Public Service Bargaining Council has found.

This was confirmed on Monday by National Prosecuting Authority spokeswoman Bulelwa Makeke.

“The bargaining council (found) that it was not flawed,” she said.

“She (Breytenbach) remains suspended and now we wait for the outcome of the disciplinary hearing.”

The arbitration hearing, at the Public Service Bargaining Council chambers in Centurion, was held in parallel with Breytenbach's disciplinary hearing at the NPA's headquarters in Silverton, east of Pretoria.

Breytenbach, who is head of the NPA's regional specialised commercial crime unit, was suspended last year, allegedly for failing to act impartially in her investigation of a dispute between Imperial Crown Trading (ICT) and Sishen/Kumba Iron Ore over mining rights in the Northern Cape.

An attorney for ICT, Ronald Mendelow, wrote a complaint to the then national director of public prosecutions Menzi Simelane. Mendelow claimed Breytenbach was “too close” to criminal lawyer Mike Hellens - a situation which would compromise her independence.

Hellens was on a brief for ICT's rival, Kumba Iron Ore Limited.

Breytenbach's lawyer was not immediately available for comment. - Sapa

Glynnis Breytenbach case dismissed
09:57 (GMT+2), Fri, 19 July 2013
Glynnis Breytenbach case dismissed
Glynnis Breytenbach
Photo: The Times
Johannesburg - NPA prosecutor Glynnis Breytenbach's application to be reinstated to her job was dismissed by the Labour Court in Johannesburg on Friday.

"The application was dismissed," Breytenbach said after proceedings. She declined to comment further.

Earlier in July Judge Hilary Rabkin-Naicker heard arguments from lawyers representing the National Prosecuting Authority (NPA) and Breytenbach.

Andrew Redding SC, for Breytenbach, submitted that her new job was not the same as the one she had before her suspension in April 2012.

"The position to which she has been transferred is in no way the equivalent of the position she used to hold," he said.

Redding described the NPA's conduct since Breytenbach's suspension as unusual.

"What began as an investigation into her conduct blew up into... a federal case against her," he told the court.

He contended that the prosecuting authority had done all it could to prevent her returning to her position from the day on which the NPA levelled allegations against her.

Redding submitted the NPA still considered Breytenbach suspended. He said this was based on letters between her lawyer and the NPA after she was cleared, at a disciplinary hearing, of all 15 charges against her on May 27.

The following day, the NPA announced it would bring a court challenge against the ruling because it considered the findings "factually incorrect and legally unsustainable".

The NPA wanted to place Breytenbach on special leave pending a review of the disciplinary hearing's findings. At a meeting held on Breytenbach's return to work, she was told there were allegations of misconduct against her.

"[The NPA]... is doing all it can do to prevent Ms Breytenbach from getting her hands on the docket of... [former police crime intelligence head Richard] Mdluli," Redding said.

Breytenbach brought an urgent application to get her job back as regional head of the NPA's specialised commercial crime unit in Pretoria.


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