Judge cautions NPA over Breytenbach
2012-07-18 22:28
Cape Town - The National Prosecuting Authority was warned on Wednesday to treat its right to discipline senior prosecutor Glynnis Breytenbach with “great circumspection” to avoid compromising the investigation into Lieutenant General Richard Mdluli, according to a report.
Breytenbach, the senior prosecutor responsible for the case in which Mdluli is accused of allegedly abusing crime intelligence "slush funds", was suspended as regional head of the specialised commercial crime unit on 30 April, allegedly for conduct relating to cases allocated to her.
She had made an urgent application to the Johannesburg Labour Court to have her suspension overturned, arguing that the suspension was an attempt to protect Mdluli.
Judge Hamilton Cele on Wednesday dismissed Breytenbach's application.
He found that Breytenbach had not shown any "extraordinary or compelling urgent circumstances to justify a final declaration of the unlawfulness of her suspension".
"From the onset, it needs to be observed that an employer has a general right to discipline its employees," Cele said.
"It will only be in exceptional circumstances that this court will intervene in uncompleted disciplinary matters."
But he also warned the NPA to treat Breytenbach's upcoming disciplinary hearing with "great circumspection to avoid flouting and frustrating" the investigation into Mdluli, City Press reported.
Cele 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", the report said.
"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."
NPA spokesperson Mthunzi Mhaga told reporters after the hearing that Breytenbach was still regarded as an employee.
"We have a disciplinary hearing - which is pending - that will deal with all issues. The hearing might exonerate her, or find her guilty, but we have to allow that process to unfold," he said.
"... for now, she remains an employee of the NPA. I am not aware of any animosity [between Breytenbach and the NPA]."
He could not say whether the hearing would be open to the media, but said there would be more clarity after Media24's application for access was heard by North Gauteng High Court in Pretoria.
Breytenbach's disciplinary hearing was expected to be held on 23 July.
It emerged on 4 July that media would not be allowed on the NPA's premises on the day of the hearing.
The NPA previously said that a ruling by the former chairperson of the hearing, advocate Barry Madolo, to allow the media to attend was "contradictory, patently wrong, unenforceable and irrational".
