When suspended prosecutor Glynnis Breytenbach’s disciplinary hearing resumed in Silverton this week following a five-month hiatus, there was not only a new face in the chairperson’s seat. On either side of the chair, two large burgundy banners of the PR variety had also appeared to promote the National Prosecuting Authority, the organisation hosting the show. Here's what's really at stake.
The banners feature an illustration of Lady Justice, photographs of prosecutors in action, police officers dutifully taking down statements, courthouse pillars and a South Africa flag in full flap. But it is the NPA’s mission statement which dominates: “Guided by the Constitution, we in the National Prosecuting Authority ensure justice for the victims of crime by prosecuting without fear, favour and prejudice and by working with our partners and the public to solve and prevent crime.”
This week’s hearing was swallowed by elaborate evidence about an astonishingly complex mining dispute and it become increasingly difficult to keep track of events and wade through the detail of it all. On Twitter, we journos battled to keep it straight and simple as our followers were lost in the intricacies of an ugly mining brawl. I took to adopting the hashtag #SAsMostComplicatedStoryYouShouldCareAbout
In the sweltering stuffiness of the sealed off room in the Victoria & Griffiths Mxenge building, which was an SABC studio in a past lifetime, it became increasingly evident that it was not merely Breytenbach on trial here. Rather, it was the mission statement of the NPA, so obviously emblazoned on the banners beside the chairperson, that was really being tried and tested in this hearing.
When you strip it all down and remove the frills, you are in essence left with this: Glynnis Breytenbach is arguably the country’s top graft and economic crime prosecutor. Until her suspension in April last year, she was the regional head of the NPA’s specialised commercial crimes unit and was prosecuting numerous headline-grabbing cases including that of Julius Malema, ponzi scheme accused Barry Tannenbaum, the Arms Deal and former SAPS crime intelligence head Richard Mdluli. She was also prosecuting politically connected mining company Imperial Crown Trading (ICT) for fraud. It was her handling of the ICT case which her bosses at the NPA used as grounds to suspend her.
In 2009, steel manufacturer ArcelorMittal failed to convert its 21.4% stake in the Sishen mine in the Northern Cape as it was required to do according to a new piece of legislation. This triggered a race between Kumba Iron Ore and ICT to claim the stake. Kumba, which is largely owned by mining giant Anglo American, was scrapping it out with ICT and its political heavyweights which include President Jacob Zuma’s son Duduzane, a Gupta family lieutenant and Deputy President Kgalema Motlanthe’s romantic partner Gugu Mtshali.
In the gloves-off fight that followed, clandestine tape recordings were made, documents were forged, government officials appeared to be deeply involved and it all got very, very messy.
Kumba accused ICT of forging its application for the prospecting rights by copying and pasting its documents with the help of Department of Mineral Resources officials. In turn, ICT accused Kumba of tampering with the application, contaminating it to make it appear as though it had been forged. Breytenbach began to prosecute ICT but didn’t pursue a counter-complaint against Kumba because she believed it to be too ridiculous a claim. The complainant in the case, Kumba, briefed veteran criminal silk, advocate Mike Hellens. He and Breytenbach have known each other for years as courtroom adversaries and have become good friends.
ICT and its attorney, Ronnie Mendelow, went on the offensive and laid complaints against Breytenbach, accusing her of bias in the case by allowing Hellens to dictate to her. They were aggrieved that she allowed him to draw up affidavits for a Hawks investigator and even made an approach to an ICT director to offer him a deal if he turned state witness.
Acting national director of public prosecutions Nomgcobo Jiba used Mendelow’s complaint as grounds to suspend Breytenbach.
But Breytenbach wasn’t buying it. She didn’t believe she was suspended because of her handling of the ICT matter – rather she thought it had everything to do with Richard Mdluli. At the time, Breytenbach was neck-deep in the case against the controversial head of crime intelligence. She was insisting on prosecuting him for fraud involving his abuse of a slush fund but she was getting directives from above to withdraw charges against him.
Stubborn as ever, she dug in her heels and refused. The timeline of events backs this up. The Mendelow complaint is laid in October 2011, Breytenbach withdraws from the ICT case in November. The matter then goes silent. On 1 February 2012, Breytenbach receives a notice of intention to suspend her. The next day, the NPA says it has withdrawn charges against Mdluli relating to a decade old murder. Breytenbach is only suspended in April, days after she writes a damning memo stating her case as to why Mdluli must be prosecuted.
Breytenbach believes NPA boss Jiba and the national head of the commercial crimes unit, Lawrence Mrwebi, ganged up on her to protect their buddy Mdluli. The trio has a shared history and reason to rally.
In 2008, Jiba was suspended for assisting Mdluli and the police in general with its case against Jackie Selebi’s prosecutor Gerrie Nel. At her Labour Court case, Mdluli came to her rescue and assisted her with a secret spy-tape. Mrwebi was suspended along with Jiba for his involvement in the Gerrie Nel debacle. He also assisted Selebi against his employers, the NPA, in his trial.
All three are politically close to Zuma and rode the wave back from the wilderness once he had been resurrected himself. In 2010, Zuma even expunged Jiba’s husband’s criminal record. Its also believed Mdluli played a central role in delivering the crucial spy-tapes to Zuma which led to his corruption charges being dropped. He’d also repeatedly made overtures to the president via top-level documents and letters.
Breytenbach was adamant the cabal at the top of the country’s prosecuting service was colluding to stop her from prosecuting their mate.
So there you have it.
On one side you have a politically connected mining house with directors who are set to make billions of rands from the Sishen deal. There are allegations of bias against a top level, crack prosecutor and general all round dodginess. On the other, there’s an apparently shady cop who is seemingly being protected by prosecutions bosses because of his proximity to the president despite mounting evidence of fraud against him.
But what is at stake?
If Breytenbach’s version is correct, then those in charge at the NPA are going after the best commercial prosecutor in the country in order to get rid of her. The reason they’re doing it is to stop the prosecution of not just Mdluli, but others like him. Those with power, like the president himself. They’re doing so on the basis of trumped up charges that have been dishonestly concocted.
What is at stake for the country, is the creation of a National Prosecuting Authority that does not have the capacity or the will to prosecute those who have political power. Others in the corridors at the VGM Building will have seen what happened to Breytenbach when she attempted to speak truth to power. It will create an NPA consisting of prosecutors who can’t, and won’t, touch people in power at the expense of the multinational company which chooses to either invest in this country, or not. The deeply vaunted value of prosecutorial independence would have been compromised and the ideal of prosecuting without fear, favour and prejudice trampled upon.
If the NPA’s charges stand up and Breytenbach is in fact guilty of the allegations against her, there is also much on the line. It would then mean that one of the most highly regarded public officials in the country could be bought and be influenced. It would show that Kumba and, by extension, Anglo American, are in a position to influence a prosecutor in a way that deeply perverts the course of justice. The integrity of the NPA as a whole would be compromised as the thought that would then permeate all cases would be, in what other instance could this happen? Trust and faith in the system would be eroded. The integrity of the Department of Mineral Resources would also be at stake if it is shown to be true that its officials were complicit in the forgery of such a massively valued prospecting rights application.
#SAsMostComplicatedStoryYouShouldCareAbout is not just about a career prosecutor and the 16 charges against her. You should care about it because of the gravity of the implications. Shift your focus from the feisty, no-nonsense prosecutor glaring at her accusers across tightly folded arms to the proud banners paraded just meters away from her.
It is that mission statement, promising citizens justice and a fearless, fair criminal justice system, we should really be looking at. DM
"I know of a cure for everything: salt water...in one way or the other. Sweat or tears or the salt sea." ~ Karen Blixen