South Africa

Mokgoro Inquiry

Breytenbach tells of days of darkness at NPA

Breytenbach tells of days of darkness at NPA
Nomgcobo Jiba (Beeld / Cornel van Heerden/ Gallo) / Democratic Alliance (DA) Justice and Constitutional Development spokesperson, Glynnis Breytenbach, July 11, 2017 in Pretoria, South Africa. (Photo by Gallo Images / Alet Pretorius) Lawrence Mrwebi (Photo by / Foto24 / Herman Verwey/ Gallo)

After a suspension, a disciplinary hearing and a criminal trial, former prosecutor Glynnis Breytenbach finally had her say at the Mokgoro Inquiry on the circumstances that led to her ousting at the NPA and on the fitness of now-suspended senior advocates, Nomgcobo Jiba and Lawrence Mrwebi, to hold office at the prosecuting authority.

When Glynnis Breytenbach was suspended on 30 April 2012 from the office of Senior Deputy Director of Public Prosecutions in the Specialised Commercial Crime Unit (SCCU), it dawned on her that not only were the charges against her “spurious and without merit” but were a result of the case of former Crime Intelligence boss Richard Mdluli and her decision to prosecute him.

According to Breytenbach, who was testifying at the Mokgoro Inquiry on Tuesday, 29 January, the mood at the NPA at the time of her suspension was that it had been hijacked. And that although there had always been political pressure to act on cases, the type of influence at play was unprecedented.

The Mokgoro Inquiry was set up to determine whether Nomgcobo Jiba, the former acting national director of public prosecutions (NDPP), and Lawrence Mrwebi, special director of public prosecutions, are fit to hold office at the NPA. Both are currently on suspension.

It is not certain when the rot set in at the NPA but it became more obvious when Menzi Simelane was appointed as head of the NPA in 2009 by then president Jacob Zuma. Simelane’s appointment was later set aside by the court, but only after some damage had been done. This damage included the process to dismantle the SCCU, Breytenbach’s unit.

Mrwebi was “vocally supportive” of the decision to dismantle the unit as it was deemed elitist even though it was considered to be strong on crime, with a 92% conviction rate and a small backlog, Breytenbach said.

She worked under the North Gauteng director of public prosecution, Sibongile Mzinyathi. It was with Mzinyathi that Breytenbach would later fight for Mdluli to be prosecuted.

Jiba, who had recently returned from her suspension relating to her involvement in the charges against the Jackie Selebi prosecutor, Gerrie Nel, was appointed the acting head of the NPA following the removal of Simelane through the courts.

I was shocked when this (Jiba’s appointment to acting head) occurred. She had been elevated, skipping the rank of DPP,” said Breytenbach.

She believed that there were other people who were better qualified to hold the position but decided to give Jiba the benefit of the doubt, Breytenbach said.

Around the time of Jiba’s appointment as acting NDPP, Mrwebi was appointed as a special director and national head of the SCCU.

What was your view of Mrwebi’s appointment as the head of SCCU?” asked Nazreen Bawa, evidence leader at the inquiry.

My view was that he held none of the requisite skills to head the SCCU.” Mrwebi did not perform well in his previous post in KwaZulu-Natal and it did not make sense to make a person head of a unit that he did not believe should even exist, said Breytenbach.

Mervyn Rip, standing for Mrwebi, argued that his promotion was one level up and normal. Mrwebi’s record was good and his promotion deserved.

Soon after his appointment on 21 November 2011, Mrwebi asked that Breytenbach withdraw the charges against Mdluli.

Breytenbach testified that on 25 November, she was called to a meeting with Karen van Rensburg, acting chief executive officer of the NPA; Mzinyathi; and Silas Ramaite, deputy NDPP, at the behest of Jiba.

In the meeting she was told there was a complaint against her made by Ronald Mendelow, acting on behalf of Imperial Crown Trading (ICT), in an ongoing case for mining rights against Kumba Iron Ore, in which Breytenbach was involved.

The NPA did not take up the complaint against her when it was lodged a month earlier on 31 October, she said, but only used it when she got involved in the Mdluli case.

Soon after that meeting, Breytenbach received a memorandum from Mrwebi informing her that the Mdluli matter had been closed and that he had informed his attorneys that the case had been dropped.

Breytenbach asked her direct supervisor, Mzinyathi, if he had approved the withdrawal of charges. Mzinyathi had previously given the go-ahead to prosecute and believed there was enough cause to take the case to court. Although they confronted Mrwebi on the matter, he did not budge on the decision to drop the case.

Evidence leader Bawa read from a letter written by Mrwebi in which he defended his decision: “The National Prosecuting Authority took a principled and considerate decision on this matter without fear, favour or prejudice.”

Breytenbach responded by disagreeing with the contents of the letter.

Five months later, on 24 April 2012, advocates Chris Smith, Jan Ferreira and Breytenbach sent a memorandum to Jiba, in her position as acting head of the NPA, to try to persuade her to reinstate the charges withdrawn by Mrwebi against Mdluli as they believed there was a prima facie case to prosecute.

Instead of a go-ahead to prosecute, on 30 April 2012, Breytenbach was served with a letter of suspension from Jiba dated 23 April 2012 – the day before she submitted the memorandum to try to persuade Jiba to reinstate the charges.

Breytenbach claims the letter from Jiba was backdated to suggest that the decision to suspend her was made prior to the delivery of the memorandum arguing for the prosecution of Mdluli.

Although a disciplinary hearing cleared Breytenbach of any wrongdoing, a criminal case soon followed against her regarding documents she mistakenly deleted from her work laptop. These were documents which, according to Breytenbach, were inconsequential and available elsewhere. She was acquitted in the criminal case.

I was no longer suspended; I was not on leave but in limbo. So I wanted to get back to work,” she said.

Breytenbach testified that she was transferred to another department and not given work to do. Her relationship with her colleagues was irrevocably broken, which led to her resigning in January 2014.

She moved to politics and currently serves as a Democratic Alliance member of parliament and the party’s shadow minister of justice.

In response to Breytenbach’s testimony, Norman Arendse, acting on behalf of Jiba, argued that Breytenbach held a grudge against Jiba for being overlooked in the promotion. Both advocates had about the same amount of work experience in the NPA, having started in the late 1980s during the dying days of apartheid, when Jiba was appointed acting NDPP.

Arendse presented the Supreme court of Appeal (SCA) judgment to reinstate Jiba and Mrwebi as advocates after the General Council of the Bar had acquired a ruling from the High Court to strike them off the roll as proof of their fitness to hold office.

He said the ruling by the SCA showed that Jiba was fit and proper whether Breytenbach liked it or not, and that she must accept it.

Mrwebi and Jiba have been implicated in the Zondo Commission by Angelo Agrizzi for taking bribes from Bosasa in exchange for information regarding criminal cases involving the company.

The Mokgoro Inquiry continues on 30 January with Sibongile Mzinyathi on the witness stand. DM


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