Single case for Breytenbach since return to NPA, Labour Court told

2013-07-02 19:09

Senior prosecutor Glynnis Breytenbach has been assigned just one case in the two weeks since being allowed back at work by National Prosecuting Authority head Nomgcobo Jiba.

This emerged in the Labour Court in Johannesburg today, where Breytenbach has brought an urgent application to be reinstated to her old position as head of the special commercialised crimes unit (SCCU) in Pretoria.

Jiba has refused to allow Breytenbach to return to her post because of three new complaints which Jiba claims are being investigated against her.

Andrew Redding, Breytenbach’s lawyer, today said it was more likely that the NPA was “doing whatever it can to prevent Ms Breytenbach from going back to the SCCU and getting her hands on (suspended crime intelligence head) Richard Mdluli’s file”.

“God forbid she get her hands back on the file of General Mdluli!”

Redding was referring to Breytenbach’s consistent refrain that she was removed from her job to protect Mdluli from prosecution on charges of fraud and corruption.

Breytenbach had insisted that there was a case against Mdluli even when her superiors instructed that the charges be dropped.

Redding today argued the continued protection of Mdluli was a far more likely explanation for Breytenbach’s transfer than the investigation of new complaints against her.

“They can’t tell us who is investigating (the new complaints), when the investigation began, who complained ... they are in fact saying, we’re just going to leave you in the dark.”

William Mokhari, who appeared for the NPA, argued that Breytenbach had never produced a shred of evidence to back up the claim that she had been removed to protect Mdluli.

Mokhari explained that what Jiba had done was to tell Breytenbach in a meeting on June 10: “I know you have a great interest in commercial crime cases, these cases are also done in the DPP’s office, I will try and make sure you get those cases.”

He said Jiba had avoided suspending Breytenbach again because she wanted to avoid the perception that Breytenbach was being victimised.

But this is an argument Breytenbach vehemently opposes.

In her replying affidavit, filed on Sunday, Breytenbach said it was clear “that the Director of Public Prosecutions, North Gauteng (Sibongile Mzinyathi), is as uncomfortable with my presence there as I am dissatisfied of being there.

The idyllic picture painted by (Jiba) could not be further from the truth,” said Breytenbach in her responding affidavit.

Mokhari did not deal specifically with Breytenbach’s contention that she had received only one case in the two weeks since returning to work, saying only that she had been “gainfully employed”.

Breytenbach was cleared of the fifteen original disciplinary charges against her on May 27, following which a battle over her fate broke out between Breytenbach and the NPA’s lawyers.

Breytenbach is arguing that her transfer to the DPP’s office should be declared unlawful on three different grounds:

» That the NPA is interfering with the constitutional principle that demands the NPA function without fear, favour or prejudice, and the NPA’s actions are also infringing Breytenbach’s right to dignity;

» That the NPA has breached Breytenbach’s contract of employment by, in effect, demoting her, and;

» That Jiba, who has admitted to making the decision to redeploy Breytenbach in terms of the Senior Management Services (SMS) Handbook, was not authorised to do so and that only the CEO of the NPA had this power.

If the court disagrees with Breytenbach on all these grounds, her lawyers have asked for an interim order allowing her to return to the SCCU, pending a bargaining council application.

The NPA has again relied on a precedent-setting Labour Appeal Court judgment to argue that Breytenbach’s case should first have been referred to the bargaining council.

Mokhari argued that Breytenbach had not made out a case of exceptional circumstances which justified her “jumping the queue” and directly approaching the Labour Court.

The NPA was successful in this argument when Breytenbach first challenged her suspension in July last year.

Judgment was reserved.

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