Richard Mdluli, the former Crime Intelligence boss, is not off the hook yet.

Testifying before the Mokgoro Inquiry, Sibongile Mzinyathi, the North Gauteng Director of Public Prosecutions (DPP), said the investigation was ongoing and that efforts were underway to get several intelligence documents declassified.

He did not elaborate on the documents or the status of the efforts.

Mzinyathi was answering inquiry panellist Adv Kgomotso Moroka. She asked why, if the case fell under his jurisdiction, had Mzinyathi not re-instated the prosecution following its earlier withdrawal.

“Is it ever going to be prosecuted?” asked Moroka.

Mzinyathi said the decision did not rest entirely with him as he still shared a mandate on it with the Special Commercial Crimes Unit (SCCU). Once the required documents were declassified, the matter would resume.

The decision taken by Mrwebi and Jiba not to prosecute Mdluli is a key focus of the inquiry into their fitness to hold office. Jiba and Mrwebi are on suspension pending the outcome of the inquiry.

On Tuesday, 29 January, Glynnis Breytenbach, a former senior prosecutor under Mzinyathi, testified regarding the circumstances leading to her ousting at the NPA. She said Jiba and Mrwebi had gone to extreme lengths to ensure that the case against Mdluli did not make it to court.

On Wednesday, Mzinyathi testified that Mrwebi, the then newly appointed head of the SCCU, had arrived at his office on 5 December 2011 to discuss the Mdluli case.

“He told me that in terms of the NPA Act, a Special Director needed to consult with a DPP when he needed to make a decision,” said Mzinyathi.

Mrwebi, Mzinyathi said, was of the view that the case should be dropped, claiming that there was not enough evidence. But he had argued that there was a prima facie case for the Crime Intelligence boss to answer, said Mzinyathi.

Mrwebi had left without the two coming to a consensus, Mzinyathi said, and he had believed that the SCCU boss was going to canvass further opinion in the NPA.

“We parted on the understanding that he was still going to do some research and he was still going to come back to me for further discussions.”

However, on 6 December, a day after their meeting, Mzinyathi said he received two memos, one addressed to himself and the other to Breytenbach, in which Mrwebi informed them that he had decided the case should be withdrawn.

The memos were dated 4 December – the day before Mrwebi had “consulted” him, Mzinyathi testified.

He later came to realise that Mrwebi’s “consultation” visit was simply aimed at fulfilling a policy obligation rather than to reach a consensus on the matter.

According to Mzinyathi, he and Breytenbach held a joint meeting with Mrwebi on 9 December to try to persuade him not to withdraw the case. He again informed Mrwebi that he did not share his view, saying the NPA had a prosecutable case.

At that time, Menzi Simelani’s appointment as the head of NPA had recently been set aside by the court and the position was still vacant. This meant there was no senior director to mediate the impasse between the two equally ranked directors.

Mrwebi, Mzinyathi testified, said he could not reverse the decision as he had already sent a letter to Mdluli’s attorneys saying the case had been dropped. He had also instructed Chris Smith, the advocate handling the Mdluli case, to remove it from the court’s role.

Breytenbach still strongly believed that there was a good case to prosecute. However, Mzinyathi said it would be an embarrassment if two senior prosecutors were to give a junior prosecutor conflicting instructions in court. As a compromise, it was decided that Smith would make a “provisional withdrawal” of the case pending further investigation.

Shortly thereafter, Breytenbach was suspended by Jiba, who had been appointed the acting head of the NPA.

Since then the case against Mdluli has been in limbo.

Attempts by Daily Maverick to get an update on the case and the application for documents to be declassified were unsuccessful on Wednesday. DM