Breytenbach's impartiality questioned

2012-08-15 22:39

Pretoria - Prosecutor Glynnis Breytenbach "turned a blind eye" in investigating a mineral rights dispute, a witness told her disciplinary hearing on Wednesday.

"This was an absolute turning of a blind eye to anything ICT [Imperial Crown Trading] had to say," Ronald Mendelow said.

Mendelow, who is the lawyer for ICT, was testifying for the National Prosecuting Authority (NPA), at its offices in Silverton, Pretoria.

The NPA said it suspended Breytenbach for failing to act impartially in her investigation of a dispute between ICT and Sishen/Kumba Iron Ore over mineral rights.

"[Breytenbach] shows no interest at all in the progress of that investigation... which is really part-and-parcel of the same investigation," Mendelow said.

Breytenbach denied this.

The investigation she allegedly ignored involved a complaint made by the department of mineral resources (DMR) against Sishen.

The DMR accused Sishen of fraud in how it submitted an application for mineral rights.

Instead, Breytenbach focused only on investigating Sishen's complaint that ICT had forged a title deed in its application for prospecting rights, Mendelow said.

"This was clearly a one-sided investigation intent only on nailing ICT."

Mendelow said he had visited the Hawks officer investigating the DMR complaint in February this year and found only one affidavit in the file. Mendelow said the officer told him no prosecutor had contacted him to give him instructions.

The DMR complaint had "been left in the dark to mould".

He said Breytenbach should have taken responsibility for the DMR case, as it was the flipside of the Sishen case.

This led to arguments about whether Breytenbach should allocate herself cases, or whether she should only take on a case after being approached by investigating officers.

Breytenbach's counsel Wim Trengove said: "There is no basis in the evidence for an assertion that she should have assumed responsibility for the complaint that the police didn't bring to her."

He later added: "The DMR case never landed on her desk."

According to an affidavit by Breytenbach, the DMR investigation was allocated to another prosecutor.

Standard practice

Earlier in the day, Mendelow said Breytenbach had worked too closely with Sishen's lawyer Mike Hellens.

"The legal representatives of a complainant should be kept at arm's length," he said.

Mendelow sent a letter of complaint about Breytenbach to the then National Director of Public Prosecutions, Menzi Simelane, on 31 October last year, alleging she favoured Sishen in her probe and had an improper relationship with Hellens.

"Not only was advocate Hellens... drafting the key documents for the prosecution, he was also drafting various key... letters for the police unit," Mendelow said.

Hellens helped draft affidavits used by the police in their investigations.

Breytenbach said it was standard practice in a complex commercial case to call on the help of lawyers who were party to the case. However, Mendelow said the matter was not complex, but a relatively simple fraud case.

The dispute involves a 21.4% mining right in the Sishen iron ore mine in the Northern Cape.

Sishen Iron Ore Company, a subsidiary of Kumba Iron Ore Limited, which owns the rest of the rights in the Sishen mine, applied for the 21.4% stake.

However, ICT also applied for a prospecting right in the 21.4% stake, and was granted it. This led to a court battle involving Kumba, ICT and the mineral resources department.

The High Court in Pretoria then granted Kumba Iron Ore exclusive rights to the Sishen mine. However, in May this year the court granted ICT and the mineral resources department leave to appeal the ruling.

The matter was pending before the Supreme Court of Appeal.

Breytenbach was suspended as regional head of the NPA's specialised commercial crime unit on April 30 this year.

She has argued that acting National Director of Public Prosecutions Nomgcobo Jiba suspended her in an attempt to stop her from prosecuting former police crime intelligence boss Richard Mdluli on fraud and other charges.

Breytenbach has pleaded not guilty to 16 charges brought against her by the NPA.

The hearing continues at 09:00 on Thursday.

  • peter.fraser.92754 - 2012-08-16 02:16 How can you be the judge without having ALL the facts ? Your comments are uncalled for and typical of someone half educated trying to be a show off by writing claptrap and then showing it to friends as a journalistic masterpiece that got published in News24. Comment about something you know something about. Your comments dont make sense. You are the one that needs help to stop making you sound like a pukeable banana. Sies on you. Now get back to class and learn about being a more useful member of society.

  • louise.cook.127 - 2012-08-16 06:14

    It's ludicrous to expect Breytenbach to "assume responsibility" for the DMR complaint. Prosecutors handle cases they get from the police and this one was sent to another prosecutor. Mendelow knows his client (ICT) forged documents and that's why he's so jumpy.

  • danie.smit.587 - 2012-08-16 07:29

    NPA job as far as I know must charge a suspected criminal for their suspected criminal activity, for that they need to work with the party that laid the charge, the Judge are paid to decide if a criminal activity took place and then punish the criminal.

  • mike.clery - 2012-08-16 08:02

    What am I missing? 1) "The NPA said it suspended Breytenbach for failing to act impartially in her investigation of a dispute between ICT and Sishen/Kumba Iron Ore over mineral rights." Since when is it a prosecutor's function to manage disputes? *Her* job is to prepare the *criminal* case of fraud against ICT, which was investigated by the Hawks after charges were laid. 2) The lawyer for the defendant in the criminal case is being given a platform to attack the prosecutor of that case. The relevance of any charge against the other party in a *civil* case is for the court dealing with that case, not the NPA, to decide. If he's unhappy that a charge his client laid isn't being investigated "properly", shouldn't he address his complaint to the Hawks and the head of the NPA, who in turn should address that with the prosecutor who's responsible for *that* case? Why is one party's lawyer being given this platform to present irrelevant information?

  • Johan De Beer - 2012-08-16 21:20

    Sy lyk de bliksem in!

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