NPA's bid to stall Breytenbach hearing
23 Jul 2012 15:34 - Sally Evans
The disciplinary hearing of suspended prosecutor Glynnis Breytenbach was postponed to Tuesday after hours of technical arguments at the NPA's offices.
The NPA, represented by advocate William Mokhari SC, has asked for a postponement to Wednesday to decide on the authority's next move. (Gallo)
More CoverageBreytenbach's NPA suspension challenge dismissedNPA claims Breytenbach case 'not urgent'Judgment stayed in Mdluli suspension caseMdluli stays benched as judge puts labour case on holdBreytenbach's lawyers argued the NPA is stalling her disciplinary enquiry as part of its "motive in delaying her prosecuting [Richard] Mdluli".
Breytenbach's advocate Wim Trengove is arguing for the hearing to continue uninterrupted, despite an order handed down by the North Gauteng High Court on Monday which granted the media access to proceedings.
The NPA, represented by advocate William Mokhari SC, has asked for a postponement to Wednesday to decide on the authority's next move.
The media brought an application for access to the suspended senior prosecutor's disciplinary hearing which was due to begin at the NPA's offices in Silverton, Pretoria.
The disciplinary hearing's former chairperson granted access but the NPA later decided to ignore this ruling, which led to the urgent court application brought by Media24 on Friday.
A new chair, Sandile July has now been appointed to oversee Breytenbach's hearing.
Trengove argued: "The NPA above all should obey the orders of the courts until they are overturned. No harm can be done by obeying the court until its order is overturned. Its effect will merely be that there is print reporting on these hearings and I cannot imagine that the NPA can yet again take that order on appeal. It has already been punished for the irresponsible way it has responded to the print media to gain access to this matter."
Buying time
Mokhari argued the NPA needed two days to peruse the court order, so it could make a decision on whether it would appeal it or not.
"The employee suggests that the process should start. But we have to deal with it [the court order] and any suggestion that a postponement by two days to allow the NPA time to consider its options is unreasonable," Mokhari argued.
Mokhari told the hearing that the NPA needed time to "understand the ambit of the order and its effect on the enquiry going forward".
But Trengove said the NPA was not thinking about the prejudice a postponement would have on his client, Breytenbach.
"She [Breytenbach] was suspended on April 30, more than two months ago. The ongoing suspension and charges hanging over her, reflect on her personal and professional integrity. She is entitled to this process being carried out expeditiously. The motive behind these proceedings is to stop her from prosecuting General [Richard] Mdluli. And as long as these are delayed the NPA is winning in delaying that [Mdluli] matter."
"For as long as these proceedings are delayed, the NPA are succeeding with their ulterior and unlawful purpose," Trengove said.
Trengove continued: "That is why the court ordered the media attend the hearing because it is a matter of public interest which will be best served by the expeditious completing of these proceedings."
Protecting Mdluli
Breytenbach was suspended as regional head of the specialised commercial crime unit, allegedly for conduct relating to cases allocated to her.
She has contended that acting national director of public prosecutions Nomgcobo Jiba suspended her in an attempt to protect Mdluli.
On Wednesday, Johannesburg Labour Court Judge Hamilton Cele dismissed her application against suspension from the NPA.
This was because Breytenbach failed to show there were compelling or urgent circumstances to justify a final declaration of the unlawfulness of her suspension, he said.
However, he said that if the NPA did exercise its right to discipline Breytenbach, it could be found to be "flouting and frustrating" the aims of an investigation ordered by the North Gauteng High Court in Pretoria into Mdluli's suspension.
The technical arguments about postponement continued on Monday afternoon. – Additional reporting by Sapa
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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
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 fund 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.
