Johannesburg - The National Prosecuting Authority (NPA) may charge senior prosecutor Glynnis Breytenbach for fraud and corruption in a move that could derail her newly found political career with Helen Zille’s DA.
A damning draft report given to National Director of Public Prosecutions Mxolisi Nxasana just days before Breytenbach resigned last week accuses her of flouting several internal codes and acts.
According to the report, compiled by the authority’s integrity management unit, Breytenbach:
“It is recommended that Breytenbach must be disciplined and that charges of conflict of interest, misconduct and corruption must be preferred against her… It is recommended that criminal prosecution must be instituted against Breytenbach for corruption and fraud,” states the draft report.
Whether Breytenbach will face the internal charges after handing in her resignation 10 days ago to join the DA on May 1, is still unclear.
NPA spokesman Nathi Mncube confirmed that Nxasana had received the report.
“It is quite voluminous. He received it on Thursday but has not looked at it yet. On Tuesday he will have a meeting about the report and other issues relating to Glynnis Breytenbach,” said Mncube.
He said he could not comment on the contents of the report as Nxasana had not yet read it.
Mncube said that Breytenbach’s resignation had not yet been accepted and that Nxasana was investigating issues around her resignation.
There was, however, nothing untoward about Breytenbach’s resignation, which would only kick in on April 30.
The authority requires an employee to give sufficient notice time. This could be 24 hours, one month or two months, said Mncube.
In an SMS response to The Sunday Independent, Breytenbach said she was not authorised to speak to the press as she was still employed by the authority, and referred media queries to her lawyer, Gerhard Wagenaar.
Wagenaar said he would not comment on the report until he received a copy of it.
“I suggest you ask the NPA if they made any report available to advocate Breytenbach. If not, perhaps they can explain,” he said.
The report details Breytenbach’s close relationship with Advocate Andre Bezuidenhout and businessman Nathan Kirsh, spanning roughly 10 years.
Breytenbach prosecuted two connected cases in which Kirsh was the complainant.
Bezuidenhout represented Kirsh in a linked civil case.
Later Breytenbach and Bezuidenhout became business partners in a British Virgin Islands-based business, which Kirsh gave a $1m loan.
When Breytenbach ran into a costly labour dispute at work, which landed in the Johannesburg Labour Court in 2012, Kirsh once again stepped in.
Last year The Sunday Independent reported that the FW De Klerk Foundation was footing her hefty legal bill and that Kirsh – a Swazi-born South African businessman who now lives in the UK – was a donor to the foundation.
The draft report states that Breytenbach received a R6.3m donation from Kirsh towards her legal fees in the labour dispute with the authority, through the FW De Klerk Foundation.
At the time Breytenbach was challenging her suspension based on allegations that she had not acted impartially in a matter she was involved in.
Last year, she was cleared of the 15 charges and she maintained her suspension was linked to her pursuit of fraud and corruption charges against suspended Crime Intelligence boss Richard Mdluli.
According to the draft report, Breytenbach should not have accepted the money from Kirsh, who as a complainant in a matter she had worked on as a client. It could be seen as a kickback.
Only one of the two matters, in which Kirsh was defrauded of over R250m, has been finalised.
Breytenbach also allegedly received a bottle of wine and tickets to the theatre while she was in London from Kirsh. She had declared the wine.
As a result of Breytenbach accepting Kirsh’s donation, the draft report states that she contravened the Public Service Regulations, the senior management service handbook and the code of conduct for prosecutors.
Kirsh did not respond to SMSes on Saturday.
Breytenbach also allegedly failed to submit the financial disclosure forms for 2013/2014 and provided incorrect information about her business interests.
She involved herself in matters where there was a clear conflict of interest by not recusing herself or disclosing her business interest with Bezuidenhout to the NPA.
According to the draft report, Bezuidenhout and Breytenbach were not only business partners but also close friends with a personal relationship.
Breytenbach and Bezuidenhout travelled together on business and private trips, of which one of their most recent was to London in August 2011.
Breytenbach, the draft report alleges, had done much behind the scenes work to promote Bezuidenhout.
She motivated for him to be appointed by the authority on a retainer of R480 000 a month and wrote to the Bar Council for him to get silk status.
“She was motivating for her employer to take on her business partner, who stood surety for a $1m loan that they were both going to benefit from, on a retainer of R480 000 per month,” said the report.
Bezuidenhout did not respond to calls and SMSes.
The draft report also details two cases which Breytenbach prosecuted involving Bezuidenhout’s clients.
It notes that Breytenbach contravened the Prevention of Corrupt Activities Act by receiving a benefit from Bezuidenhout, who stood as surety for the $1m loan by then deliberately dealing with a case so that Bezuidenhout’s client could benefit.
She also allegedly personally involved herself, interfered and used undue influence in drunk driving cases relating to Bezuidenhout’s relatives.
In doing this she allegedly contravened the NPA Act in that she failed to carry her duties impartially but became personally involved.
Breytenbach allegedly flew down to Cape Town on two occasions for two separate matters, misleading the authority on her reasons for her trips.
The report also refers to a radio interview that Wagenaar did following a newspaper article where the authority accused Breytenbach of being an Israeli intelligence spy.
Wagenaar repeated the claim on the radio station.
The draft report states that their apparent intention in the interview was to embarrass the country and the authority.