Prosecutor hits back at NPA

2012-02-18 17:51

A top prosecutor under threat of suspension by the National Prosecuting Authority (NPA) says there is not the “remotest possibility” she would let an outside party drive an investigation.

Advocate Glynnis Breytenbach says she always performs her functions “independently and ­objectively”.

In an affidavit filed in the Northern Cape High Court this week, Breytenbach spoke out for the first time since being served with a notice of suspension by the NPA more than two weeks ago.

The NPA accuses Breytenbach, who heads the Special Commercial Crimes Court in Pretoria, of abusing her power in a matter involving the awarding of multibillion-rand rights to mine for iron ore at Sishen.

Through her lawyer, Breytenbach has denied abusing her power and has asked the NPA to explain their reasons for wanting to suspend her. The NPA has since gone quiet on the matter.

Breytenbach is the prosecutor in a case investigated by the Hawks involving alleged fraud in the application by an ANC-linked company to acquire 21.4% of prospecting rights in Sishen mine.

Imperial Crown Trading (ICT) is headed by former Kimberley city manager Phemelo Sehunelo.

President Jacob Zuma’s son Duduzane is a shareholder and Deputy President Kgalema Motlanthe’s partner Gugu Mtshali is a director of the company.

The department of mineral resources (DMR) originally awarded the rights to ICT, but it was revoked by the North Gauteng High Court last year. ICT is currently appealing that ruling.

In separate cases, ICT and Kumba Iron Ore are accusing each ­other of sabotaging the other’s application for mining rights.

Kumba says ICT illegally accessed its application at the offices of the department of mineral resources and copied it.

ICT accuses Kumba of replacing the company’s “real” application with a fake copy at the DMR’s office before adjudication of the bids.

In July last year the Hawks raided ICT’s office, Sehunelo’s house and the DMR’s offices to obtain computers and documents.

ICT is now challenging the validity of the search and seizure warrants used in these raids in the Northern Cape High Court.

An affidavit filed by Sehunelo accuses Breytenbach and Hawks investigating officer Lieutenant Colonel Sandra van Wyk of bias towards Kumba in their probe.

He claims Breytenbach and Kumba’s senior counsel Mike Hellens have a close relationship and that Hellens was “possibly controlling or directing the investigation in an indirect manner”.

ICT also lodged a complaint with the NPA that led directly to action being taken against Breytenbach.

In her affidavit filed on Monday in response to ICT’s challenge, Breytenbach says it would be a ­“fiction and out of kilter with reality for a complainant simply to make a complaint and that thereafter the police and the prosecution are left to work out everything themselves”.

It was not strange for a complainant or their legal representatives (like Hellens, in Kumba’s case) to assist the prosecution in complex commercial cases.

“In all my dealings with the complainants… I have consistently indicated that whilst their assistance on complex factual and legal issues would be appreciated, their role was simply as the provider of necessary inputs and information,” Breytenbach wrote.

Responding to a claim that ­Hellens acted on behalf of the state in offering ICT director Archie Luhlabo indemnity from prosecution if he cooperated with the Hawks, Breytenbach says Hellens merely acted as a “messenger”.

Hellens approached Luhlabo’s advocate Nazeer Cassim SC on Breytenbach’s request and explained the “potential that existed” for Luhlabo to turn state ­witness.

In her affidavit also filed this week, Van Wyk blows massive holes in ICT’s case against Kumba.

The police found that Kumba did not access ICT’s application file at the DMR’s Kimberley office, and that ICT never applied for a title deed over the Sishen farms, as claimed by Sehunelo under oath.

Van Wyk further states that the DMR did not act impartially and sat in on consultations with ICT.

She describes Breytenbach as a “no-nonsense” person “to the point of being brusque”.

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