Media would be barred from Breytenbach hearing – NPA

2012-07-04 16:16

In a dramatic about-turn, the NPA has decided to ignore a ruling which grants the media access to the disciplinary hearing of senior prosecutor Glynnis Breytenach.

It also appears that the NPA has axed Advocate Barry Madolo as the chairperson of Breytench’s disciplinary hearing – and replaced him with a new advocate. Madolo delivered the ruling which allowed the media access.

In a letter sent to City Press’s lawyers today, state attorney Kenny Phuroe said “the chairperson (Madolo) had no jurisdiction to make the ruling he made and the ruling is therefore invalid”.

Phuroe said the ruling, which allows the media to be present in a disciplinary enquiry, was “contradictory, patently wrong, unenforceable and irrational”.

Phuroe wrote the letter on instruction from the NPA after it took “legal advice on its enforcement”.

Phuroe said the media would be barred from the NPA’s premises when the hearing continues on July 23.

Breytenbach, the senior prosecutor in charge of prosecuting former crime intelligence head Richard Mdluli, was suspended by the NPA on April 30.

She claims that her disciplinary hearing was an attempt on behalf of elements in the NPA to protect Mdluli from prosecution in relation to the alleged abuse of the police secret crime intelligence “slush fund”.

Breytenbach claims she was instructed by Advocate Lawrence Mrwebi to withdraw the criminal charges despite the fact that she believed there was a strong case against Mdluli.

The NPA claims the matter has nothing to do with Mdluli, but was related to Breytenbach’s conduct in the criminal investigation of a mining rights dispute between Kumba Iron Ore, its subsidiary Sishen and politically connected Imperial Crown Trading.

Two weeks ago, Madolo, appointed by the NPA to chair Breytenbach’s disciplinary, heard an application by City Press to allow the media access to the hearing.

Madolo last week ruled it would “enhance the standing of the (NPA) in the eyes of the public” if the matter were open to the media.

He said this was based on “the perception that (Breytenbach) is being victimised or that there is a perceived sinister motive behind the disciplinary hearing”.

Madolo also referenced arguments by City Press that the NPA had a constitutional obligation to act in an open and transparent manner.

During the hearing two weeks ago Advocate William Mokhari, appointed by the NPA to prosecute Breytenbach, also argued that the chairperson had no jurisdiction to hear an application by the media in a private disciplinary matter.

But Madolo dismissed this, saying that the NPA “could simply have closed the gates” and not allowed the media to make an application for access.
“Instead the NPA allowed the media to attend and to address me on this point. I call that abdicating. To later say that the chairperson has no jurisdiction is a contradiction,” Madolo ruled.

Phuroe’s letter states that the last paragraph of Madolo’s ruling is “quite telling” because he “has effectively recused himself and has suggested that an outside chairperson be appointed”.

The relevant paragraph of Madolo’s ruling said he wishes to “suggest that the employer (the NPA) should consider using outside counsel to chair the proceedings to dispel any notion of bias”.

Bulelwa Makeke, communications head for the NPA, could not yet confirm whether Madolo had been fired.

City Press will approach the high court to overturn the decision if the NPA insists that the matter remains closed to the media.

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