Mendelow admits to false accusation in Breytenbach hearing

16 JAN 2013 14:40 - SALLY EVANS The hearing into suspended prosecutor Glynnis Breytenbach started off with a false accusation made by Imperial Crown Trading lawyer Ronnie Mendelow. OUR COVERAGE Trengove probes 'absurd' claims at Breytenbach hearing Mendelow concludes testimony at Breytenbach hearing Mendelow claims 'contradictions' in Breytenbach affidavits Mendelow is testifying for the National Prosecuting Authority (NPA) against Breytenbach. Mendelow, who is under cross-examination by Breytenbach's advocate Wim Trengove, claimed on Wednesday that an affidavit he was questioned on, on Tuesday, had not been part of the court record and that it had been "planted" after the fact. However, following a short adjournment it was established that the affidavit had in fact been part of the court record, as it was marked in the index as an annexure to another affidavit. Mendelow conceded: "It appears that it is there. It is not annexed to the answering affidavit, I don't know how it came to be." To which Trengove shot back: "Are you now saying it was before the court? Yes, indeed [you are]. Your insulting accusation was completely false. This business about planting was nonsense. You are giving evidence under oath. You have accused senior lawyers and senior police of planting evidence. That is a very serious accusation." Mendelow was forced to acknowledge his error to the hearing, following his discovery that the affidavit had in fact been annexed in the court record to the affidavit and filed by Mendelow himself. Trengove noted Mendelow's apology before having the last say: "What I am canvassing now, is the care you take before you make serious allegations." Breytenbach was suspended in April last year by the NPA, following a complaint by Mendelow and Imperial Crown Trading (ICT) that she had shown bias to their rival Sishen Iron Ore Company (Sioc), a subsidiary of Kumba Iron Ore, during a fraud investigation into ICT. At loggerheads Breytenbach has maintained however, that she was suspended because she was involved in investigating suspended crime intelligence head Richard Mdluli - a claim the NPA have denied. Sioc and ICT have been at loggerheads over a prospecting right to mine 21.4% of the Sishen iron ore mine in the Northern Cape since May 2009. The department of mineral resources granted the rights to ICT - which Sioc took to court in a review application and won. Following this the two were involved in lodging criminal complaints against one another. This week Trengove noted during Mendelow's cross-examination that the "charge against Breytenbach is that she took the one accusation [Sioc's] seriously and not the other (ICT's). I am trying to demonstrate it was a very serious allegation, whereas the complaint against Sioc was based on very flimsy evidence and it was absurd. There is evidence in substantiation of fraud committed by ICT ... there was an abundance amount of evidence that the department officials were involved in ICT's application," Trengove said. The allegation against Sioc relates to a complaint made by the department of mineral resources that Sioc had lodged its prospecting application early. The rights to the mine were up for grabs following the cessation of old mining rights, which had belonged to ArcelorMittal (Amsa) up until April 30 2009, thereafter the 21.4% was fair game - both ICT and Sioc are fighting for the stake. Applications for the rights could only be lodged after midnight on April 30, 2009. However, May 1, was a public holiday, therefore the only day for the applications to be processed was Monday, May 4. Whichever of the companies lodged their applications first would get the rights, while if they both lodged at the same time, the company with more BEE credentials would win - in this case ICT trumps Sioc in terms of its BEE ratings. Misled Sioc handed their application in on April 30, following an agreement it had with the department of mineral resources officials in Kimberley, who would stamp the form on May 4, although it had been processed on May 1. ICT and the department have alleged that Sioc had acted fraudulently when it lodged its application early, while at the same time it had "misled" department officials on when to date-stamp its application. Trengove noted earlier on Wednesday however that in the Kimberley record the department informed Sioc that it's application was competing with another application, which had been lodged on the same day, regarding rights over the same land. Trengove noted: "What we know that meant was, that Sioc was informed that their application had been accepted as having been received on Monday, 4 May. So ICT's application was also treated as having been received on Monday May 4. Both were being treated as having been accepted on Monday 4 May. So, what these documents make clear is that the department treated Sioc's application as received on May 4, and not that it had been received on May 1," Trengove told Mendelow. The counter-complaint against ICT is related to an allegation from Kumba and Sioc that ICT connived with department officials to ensure their application was captured on the department’s system on May 4 2009, but that in reality its application was incomplete at the time. Forged copies of Kumba’s title deeds were found in ICT's application and Sioc maintains that ICT took copies of the title-deeds from their application and forged them to make copies for their own application. While ICT's counter-claim alleges that Sioc was responsible for making the forgeries and placing them in ICT's application in order to "later falsely implicate ICT and thus ensure its failure [in its application]. Trengove pushed Mendelow on his assertion that Breytenbach had neglected to carry out her duty in line with the prosecutorial code of conduct. Trengove said the code "imposes the duty on a prosecutor to expose a commission of an offence, only if the prosecutor is of the opinion that there is a crime committed". Trengove continued, "Breytenbach was of the opinion that no commission of an offence had been exposed [in terms of Sioc's application]. Then you can only accuse her of a negligent opinion." Mendelow responded, saying: "She had a duty to investigate and to see to it that it was investigated. Prosecutorial codes "You remember that you said that the department's complaint against Sishen 'disappeared off the radar screen', Mr Mendelow? And that Breytenbach should have allocated that case to herself?" Trengove asked. Mendelow answered that Breytenbach didn't "necessarily" have to allocate the case to herself, "but she had done so with the ICT case. She ought to have coordinated the investigation." Trengove fired back, asking Mendelow, "Why do you present yourself as an expert on how a prosecutor should carry out their job?" Mendelow replied: "My complaint complied and fell square within the prosecutorial codes, the essence of our complaint was foul of these standards." Trengove pointed out to Mendelow that police officers are the ones who bring cases to prosecutors and "not the other way around". Mendelow did not give in, saying: "If you are aware of a complaint which is inextricably woven up with another case you are investigating, then it is incumbent upon you to investigate that too. It is plain common sense, based on the code. You must be savvy and investigate that, and act impartially." Earlier Trengove had put it to Mendelow that the department of mineral resources only laid a criminal complaint against Sioc in August 2011: "That is more than two years after the event. When did it first allege fraud?" Trengove asked Mendelow, who said: "I think it was November 2010." "That would still be more than a year and half plus since when the alleged fraud happened. And yet they had all the facts at their disposal all along, they seem at best to be a reluctant complainant," Trengove replied. Cross-examination of Mendelow continues. Mail & Guardian - Breytenbach hearing told about Mdluli case FILE PICTURE: Suspended NPA prosecutor, Glynnis ...show more IMAGE 1 of 1 Suspended NPA advocate Glynnis Breytenbach is free to re-enroll the case against former crime intelligence head Lt-Gen Richard Mdluli, her boss said on Friday. 18 January 2013 | Sapa           She could do this anytime after she had dealt with the "loopholes" that saw the case provisionally withdrawn, Lawrence Mrwebi said at her disciplinary hearing in Pretoria. "Glynnis, you don't have to ask permission; by all means, once the investigation is complete, please re-enroll and proceed with it." Mrwebi is the special director of public prosecutions and the head of the Specialised Commercial Crimes Unit in the National Prosecuting Authority. Breytenbach was suspended on April 30, 2012. She claimed that it was because of her investigation into the fraud and other charges levelled at Mdluli. She faces various charges, including allegedly failing to act impartially in an investigation relating to a mining rights dispute between Imperial Crown Trading (ICT) and Sishen/Kumba Iron Ore. ICT Lawyer Ronald Mendelow laid a complaint against her handling of the investigation. During questioning by NPA prosecutor William Mokhari SC, on Friday, Mrwebi said there had been a meeting which Breytenbach attended on December 9 2011 to discuss the Mdluli case. On this occasion Mrwebi said there were problems -- "loopholes" -- with the case in the file in front of him. She and a colleague advocate, Sibongile Mzinyathi, a director of public prosecutions for North Gauteng, were against provisionally withdrawing the charges but Mrwebi said it would be a problematic case. The case was provisionally withdrawn on December 14. "I was expecting a report at any point in time the matter has been re-enrolled," said Mrwebi. He never received such a report, he said. Mrwebi said he had nothing to do with Breytenbach's suspension. "Well, I was not involved in any suspension procedure," he said in reply to questioning by Mokhari. Breytenbach was suspended by acting National Director of Public Prosecutions Nomgcobo Jiba. Earlier, he said it was unheard of and against the National Prosecuting Authority code of conduct for complainants to help prosecutors with their investigation. "The guidance of the complainant -- It's when you lose your objectivity, you can't do it," Mrwebi said. One of Breytenbach's misconduct charges relate to her and Kumba lawyer Michael Hellens drawing up affidavits and warrants together, which ICT complained about. Mrwebi, testifying on policies and procedures, said the National Prosecuting Authority Act's Section 38 dealt with outside counsel. People suitably qualified can be engaged to perform the duties of a prosecutor, but in his 30 years' experience he had not heard of a case where the complainant helped the prosecutor. There is nothing wrong with helping the complainant or their counsel lodge the complaint, but "that would be the end of the matter for that complainant", he said. It was against the code of conduct for a complainant to say how the investigation must be taken forward. "That role must be for the investigator," he continued. On Thursday the hearing was told of a meeting at which an ICT director secretly recorded a meeting with a lawyer Nazeer Cassim, who said he was conveying a message from Hellens, and that there was an offer for him to become a state witness in the mining rights case. Cassim had been called by Breytenbach shortly before that to ask if he was acting for the director Archie Luhlabo. Mendelow had found this irregular because he was the lawyer for ICT and its directors and shareholders. Luhlabo told the hearing he would not become a state witness because he had done nothing wrong and had been wary of the sudden contact from Cassim. The hearing continues. - - COMMENTS BY SONNY - - - Is this how the Boeremag Trial was rigged? The NPA seems to bear a lot of false witness? We will have to keep tract of future cases. No wonder the mining industry and government is so corrupt. Double standards in the NPA.