Tread carefully with Breytenbach: Judge

2012-07-18 16:05

The Johannesburg Labour Court has warned the National Prosecuting Authority to treat its right to discipline senior prosecutor Glynnis Breytenbach with “great circumspection” to avoid compromising the investigation into Lieutenant General Richard Mdluli.

Judge Hamilton Cele today dismissed Breytenbach’s urgent application to the court to have her suspension overturned.

Breytenbach, the senior prosecutor responsible for the case in which Mdluli is accused of allegedly abusing crime intelligence “slush funds”, has argued her suspension was an attempt to protect Mdluli.

Cele found that Breytenbach had not shown any “extraordinary or compelling urgent circumstances to justify a final declaration of the unlawfulness of her suspension”.

Cele said that “from the onset, it needs to be observed that an employer has a general right to discipline its employees”.

“It will only be in exceptional circumstances that this court will intervene in uncompleted disciplinary matters.”

But Cele also warned the NPA to treat Breytenbach’s upcoming disciplinary hearing with “great circumspection to avoid flouting and frustrating” the investigation into Mdluli.

He was referring to a recent successful court action by rights group Freedom Under Law, barring Mdluli from returning to work.

The North Gauteng High Court is still to review the NPA’s decisions to drop murder and corruption charges against Mdluli.

Cele said that “there was a real likelihood that by exercising that right (to discipline the NPA) might be found to be flouting and frustrating the aims and objects of the investigations ordered by the court”.

“If she is found guilty and is dismissed, she will be handicapped from utilising the tools of the trade she might need in those investigations.

“The justice sought ... in the matter of General Mdluli would have been seriously compromised.”

Citing a recent case, Cele ruled that the suspension of an employee, if challenged, was a matter for the CCMA or the Bargaining Council.

Cele also dismissed an application by the NPA to strike out, or remove, Breytenbach’s evidence relating to the protection of Mdluli from the court record.

He said that when the circumstances and facts around her suspension were “seen together, they create a serious doubt” about the NPA’s explanation of its suspension of Breytenbach.

Cele referred, among others, to the fact that Breytenbach’s letter of suspension said it operated with “immediate effect” from April 23, but was only handed to her a week later.

Breytenbach’s disciplinary hearing is set to go ahead on Monday.

City Press has launched an urgent court application for access to Breytenbachs hearing.

This was after the NPA decided it would ignore a ruling of the former chairperson of Breytenbach’s hearing which granted the media access.

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