Breytenbach: Why is Mdluli special?

2012-05-05 17:34

Why is Lieutenant General Richard Mdluli not being treated in the same way as other police officers accused of corruption?

That is the central question suspended anti-graft prosecutor Glynnis Breytenbach and her colleague Jan Ferreira ask the country’s acting prosecuting boss in a hard-hitting memorandum.

City Press has seen the document that was handed to Advocate Nomgcobo Jiba two weeks ago.

Jiba suspended Breytenbach on Monday.

In the memorandum, Breytenbach and Ferreira suggest that Mdluli is being treated differently because of who he knows.

“The impression has now unfortunately been created, whether correctly or incorrectly, that Mdluli (and Colonel Heine Barnard, Mdluli’s co-accused) are being treated differently and preferentially because of who they are (and who they know).”

Breytenbach and Ferreira are scathing of the decision by Advocate Lawrence Mrwebi, head of the Specialised Commercial Crimes Unit, to withdraw charges against Mdluli and Barnard.

The charges related to the trading in of Mdluli’s personal BMW by Barnard, and the purchasing of two new BMWs with crime intelligence funds to cover the shortfall on Mdluli’s car.

Both new BMWs were used by Mdluli and his wife, Theresa Lyons, whom he had employed as an undercover crime intelligence agent.

After receiving representations from Mdluli’s lawyer, Mrwebi instructed prosecutors to drop the charges against him.

But, write Breytenbach and Ferreira, the reasons advanced by Mrwebi for why the charges should be dropped were not those given by Mdluli or his lawyer.

“The main reason provided by (Mrwebi) why the ‘prosecution of the matter cannot continue’ is based on an alleged ‘breach of the security legislation’. Something that was clearly not part of the representations by Mdluli. We have been unable to define the source of this aspect, as it did not arise from the representations.”

Mrwebi told Breytenbach it was not important “whether there was evidence (against Mdluli) or not”.

The main reason for his decision to withdraw charges on December 4 last year was that the police had no right to investigate members of the intelligence community, and that this should have been done by the Inspector General of Intelligence (IGI).

Advocate Faith Radebe, the IGI, subsequently ruled that she did not have the powers to take over police investigations, but Mrwebi insisted he was right and that the prosecution couldn’t go ahead.

Breytenbach and Ferreira argue that Mrwebi’s decision was “bad in law, and in fact illegal”. At the time of the withdrawal of charges, the agreement was that it was a “provisional withdrawal with a distinct intention of re-enrolling the matter once the concerns of (Mrwebi) had been addressed”.

But it has now “transpired that (Mrwebi) views the matter as closed”.

In a grave warning to Jiba, Breytenbach and Ferreira write that the National Prosecuting Authority cannot only “pay lip service to the fight against corruption”.

“Decisions to prosecute or not to prosecute should be made only on the available evidence, without fear, favour or prejudice, subject to the Constitution and the law.

Each prosecutor, when taking the requisite oath of office, is in any event enjoined to do just that, and we find ourselves in a position now where our conscience and professional ethics dictate that we request you to reconsider the decision taken in this matter.”

Mrwebi, they argue, should have recused himself from the case because of his and Mdluli’s involvement in the corruption case against former police chief Jackie Selebi.

Mdluli was in charge of an investigation into Selebi’s lead prosecutor, Gerrie Nel, and Mrwebi testified for Selebi in his corruption trial.

They end by reminding Jiba this was not a personal attack on Mrwebi and that it was a “difficult decision to take to escalate the matter to your office”.

“Our professional ethics dictate that we pursue the matter to its logical conclusion, which may include, of necessity, taking further steps if there is no agreement between us.”

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