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Pretoria - Suspended NPA advocate Glynnis Breytenbach is free to re-enroll the case against former crime intelligence head Lt-Gen Richard Mdluli, her boss said on Friday.
She could do this anytime after she had dealt with the “loopholes” that saw the case provisionally withdrawn, Lawrence Mrwebi said at her disciplinary hearing in Pretoria.
“Glynnis, you don't have to ask permission; by all means, once the investigation is complete, please re-enroll and proceed with it.”
Mrwebi is the special director of public prosecutions and the head of the Specialised Commercial Crimes Unit in the National Prosecuting Authority.
Breytenbach was suspended on April 30, 2012.
She claimed that it was because of her investigation into the fraud and other charges levelled at Mdluli.
She faces various charges, including allegedly failing to act impartially in an investigation relating to a mining rights dispute between Imperial Crown Trading (ICT) and Sishen/Kumba Iron Ore.
ICT Lawyer Ronald Mendelow laid a complaint against her handling of the investigation.
During questioning by NPA prosecutor William Mokhari SC, on Friday, Mrwebi said there had been a meeting which Breytenbach attended on December 9 2011 to discuss the Mdluli case.
On this occasion Mrwebi said there were problems - “loopholes” - with the case in the file in front of him.
She and a colleague advocate, Sibongile Mzinyathi, a director of public prosecutions for North Gauteng, were against provisionally withdrawing the charges but Mrwebi said it would be a problematic case.
The case was provisionally withdrawn on December 14.
“I was expecting a report at any point in time the matter has been re-enrolled,” said Mrwebi.
He never received such a report, he said.
Mrwebi said he had nothing to do with Breytenbach's suspension.
“Well, I was not involved in any suspension procedure,” he said in reply to questioning by Mokhari. Breytenbach was suspended by acting National Director of Public Prosecutions Nomgcobo Jiba.
Earlier, he said it was unheard of and against the National Prosecuting Authority code of conduct for complainants to help prosecutors with their investigation.
“The guidance of the complainant - It's when you lose your objectivity, you can't do it,” Mrwebi said.
One of Breytenbach's misconduct charges relate to her and Kumba lawyer Michael Hellens drawing up affidavits and warrants together, which ICT complained about.
Mrwebi, testifying on policies and procedures, said the National Prosecuting Authority Act's Section 38 dealt with outside counsel.
People suitably qualified can be engaged to perform the duties of a prosecutor, but in his 30 years' experience he had not heard of a case where the complainant helped the prosecutor.
There is nothing wrong with helping the complainant or their counsel lodge the complaint, but “that would be the end of the matter for that complainant”, he said.
It was against the code of conduct for a complainant to say how the investigation must be taken forward.
“That role must be for the investigator,” he continued.
On Thursday the hearing was told of a meeting at which an ICT director secretly recorded a meeting with a lawyer Nazeer Cassim, who said he was conveying a message from Hellens, and that there was an offer for him to become a state witness in the mining rights case.
Cassim had been called by Breytenbach shortly before that to ask if he was acting for the director Archie Luhlabo. Mendelow had found this irregular because he was the lawyer for ICT and its directors and shareholders.
Luhlabo told the hearing he would not become a state witness because he had done nothing wrong and had been wary of the sudden contact from Cassim.
The hearing continues. - Sapa