Senior prosecutor advocate Glynnis Breytenbach has launched a devastating attack on the acting national director of public prosecutions, Nomgcobo Jiba, accusing her of acting with “an ulterior purpose” in suspending her, allegedly to stop the prosecution of crime intelligence supremo Richard Mdluli.
Breytenbach’s allegation forms part of a challenge to her suspension lodged a week ago with the Labour Court in Johannesburg.
Breytenbach was suspended by Jiba on April 30 this year, purportedly in relation to a complaint about her conduct in the prosecution of Imperial Crown Trading (ICT), the company accused of fraud and forgery in its battle to secure mineral rights over the giant Sishen iron ore mine.
“Her [Jiba’s] real purpose was to stop me from prosecuting a senior police officer, Lieutenant General Richard Mdluli, on charges of fraud and corruption,” said Breytenbach. “She used the ICT complaint against me as an excuse to suspend me.”
The National Prosecuting Authority has denied that the disciplinary steps against Breytenbach have anything to do with the Mdluli matter.
Breytenbach’s court papers deliver an indictment of the prosecuting authority’s two key decision-makers in the Mdluli matter -- Jiba and advocate Lawrence Mrwebi -- both appointees of President Jacob Zuma.
Scrutiny
Breytenbach’s application signals that judicial and public scrutiny of the Mdluli scandal will expand to the prosecuting authority, notably through allegations of improper decisions by Mrwebi, supported by Jiba, to withdraw charges against Mdluli.
It comes in the week North Gauteng High Court Judge Ephraim Makgoba delivered a hammer blow to attempts to politically manage the police side of the Mdluli investigation.
Makgoba granted an urgent application by lobby group Freedom Under Law for Mdluli to be interdicted from carrying out any functions as a police officer.
Mdluli will be barred from office pending a full judicial review of the various decisions to abandon corruption and murder charges against him, to terminate internal police disciplinary steps against him and to reinstate him as head of crime intelligence.
Now Breytenbach’s application has added fuel to Freedom Under Law’s fire by providing a detailed account of the way in which Mrwebi and Jiba appeared to bend over backwards to protect Mdluli.
The Breytenbach documents reveal that:
•The stated basis for Breytenbach’s suspension was that she had “abused her authority” in the ICT case. It was based on a complaint laid by ICT lawyer Ronnie Mendelow in a letter dated October 31 2011, but she was suspended only six months later, after she had come into critical conflict with Mrwebi and Jiba over the Mdluli prosecution.
•Mdluli’s attorneys delivered representations by hand to Mrwebi in his capacity as national head of the Specialised Commercial Crimes Unit on November 17 2011, although he had not yet been appointed to that post and was officially appointed only on November 25. Mrwebi forwarded the representations to Breytenbach on November 21, requesting a full report by the 25th.
•The representations were based largely on what Breytenbach dismisses as “wild and unsubstantiated allegations” of a conspiracy by the Hawks and police management to falsely implicate Mdluli in the 1999 murder of his former lover’s husband and subsequently to nail him for taking a personal benefit from cars purchased by the crime intelligence secret fund. The latter formed the basis of the corruption case Breytenbach intended to prosecute.
•Much of the evidence for this “conspiracy” is drawn from affidavits by three crime intelligence agents and Mdluli himself. They repeat what Colonel Ronnie Naidoo of crime intelligence told them at a meeting with Mdluli at the Emperors Palace casino on October 27 2011, while Mdluli was ostensibly suspended.
Naidoo reported to Mdluli that Hawks boss General Anwa Dramat and senior generals Mzwandile Petros and Godfrey Lebeya had begged national commissioner Bheki Cele to dismiss Mdluli before Cele himself was suspended.
It appears these same affidavits were attached to Mdluli’s November 3 letter to Zuma, in which he made the same conspiracy allegations.
•In overturning Breytenbach’s decision to prosecute Mdluli, Mrwebi claimed to have “consulted with” the North Gauteng director of public prosecutions, advocate Sibongile Mzinyathi, as required by law, but this has been denied.
Breytenbach alleged: “I later understood from advocate Mzinyathi that advocate Mrwebi had merely mentioned to him that he was considering the charges against General Mdluli and did not consult him on their withdrawal.”
•The sole reason Mrwebi advanced for his decision was that, in his view, the investigation of the corruption charges against Mdluli was the exclusive preserve of the inspector general of intelligence (IGI), an argument not contained in the representations from Mdluli’s lawyers.
Breytenbach noted: “My understanding all along was that, contrary to advocate Mrwebi’s assertion, the IGI did not regard it as her function to undertake any criminal investigations. She confirmed as much in a letter to the acting national commissioner dated March 19.”
In that letter, the inspector general stated: “The mandate of criminal investigations rests solely with the police. As such, we are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed.”
•When Breytenbach conveyed the inspector general’s letter to Mrwebi, his response was to demand to know why his confidential memorandum on the withdrawal of charges had been disclosed to the inspector general.
In an extraordinary outburst, Mrwebi wrote back to Breytenbach: “The view of the IGI, following your solicitation of her opinion on the NPA decision on the matter, based on a document which the police or anybody else was not even legally entitled to possess, is for your consumption and does not affect the decision … That decision stands and this matter is closed.” Breytenbach commented: “This response ... was, with the greatest of respect, wholly irrational.”
•When Breytenbach and a colleague prepared a detailed appeal to Jiba to reconsider Mrwebi’s decision, it appears Jiba was content to let Mrwebi respond. That response makes it clear Mrwebi’s real reason was his acceptance of Mdluli’s conspiracy claims, relying on additional secret evidence.
Mrwebi wrote: “Having been provided with further information on the matter and having been privy to other classified, confidential and high-level discussions with police management, I am concerned that our actions in the matter may be interpreted, justifiably, as amounting to serious abuse of the legal process and as being motivated by ulterior purposes. It is my considered view that it will therefore not be in the interests of justice for the NPA to be further involved in this matter."
Concluding that her suspension is unlawful, Breytenbach stated: “I submit that the ineluctable inference from the history of my suspension … is that its purpose is to remove me from office and so prevent me from proceeding with the prosecution of General Mdluli.”
The authority will oppose her application, but has yet to file its response.
The two interlinked cases -- Freedom Under Law’s high court review and Breytenbach’s labour court challenge -- threaten to expose direct political meddling in decisions about Mdluli.
Government may attempt to manage the fallout by appointing a new national commissioner and has already launched a ministerial task team in an apparent attempt to bolster Mdluli’s conspiracy claims, but the Mdluli tsunami seems unstoppable. -- additional reporting by Sally Evans
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The M&G Centre for Investigative Journalism, supported by M&G Media and the Open Society Foundation for South Africa, produced this story. All views are ours. See our funding sources here: www.amabhungane.co.za/page/sponsors.
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