Suspended prosecutor has to wait

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Copy of glynnis breytenbach INDEPENDENT NEWSPAPERS Advocate Glynnis Breytenbach at the labour court in Braamfontein to fight her suspension, which she says came about after her investigation of Richard Mdluli. Photo: Bongiwe Mchunu

For prosecutor Glynnis Breytenbach, challenging her suspension is a matter of restoring her dignity while her employers, the National Prosecuting Authority, believe that the Johannesburg Labour Court is not the right place for this fight.

On Monday, Breytenbach took her seat in the public gallery.

The prosecutor had to listen quietly as her lawyer, advocate Andrew Redding, did the arguing.

He told the court that a suspension was the industrial equivalent of an arrest and that it was a matter of urgency that the head regional prosecutor’s dignity and reputation be restored.

On the same day that suspended police crime intelligence boss General Richard Mdluli appeared in the labour court, Breytenbach launched her bid to have her suspension declared unlawful.

But the advocate acting for the NPA, William Mokhari, argued that this case belonged to the bargaining council or the CCMA.

“When does the labour court get to determine a suspension?” he asked. “This court can’t determine issues of suspension relating to unfair labour practice.”

Mokhari said reputation could not be used to argue for urgency.

Redding said that according to the NPA’s code of conduct, Breytenbach could be suspended only if she had committed a serious offence and her presence at work would jeopardise an investigation into that offence.

Breytenbach was suspended on April 30, and the reason for this was “ulterior motives”, Redding told the court.

He said the ulterior motives related to Breytenbach’s belief that the acting National Director of Public Prosecutions, Nomgcobo Jiba, was trying to protect Mdluli. Breytenbach was investigating the suspended crime intelligence boss at the time.

Mokhari challenged this, asking for evidence.

“Mdluli is a non-issue,” he said, adding that no other prosecutor working on the Mdluli case had been singled out.

“The applicant must produce evidence. But where is the evidence?” he said.

Redding pointed to timing. He said the suspension took place at the time of the Mdluli investigation. The NPA claimed it suspended Breytenbach because of misconduct related to cases she was prosecuting.

Redding said his client hadn’t been given a reason for her suspension at the time, although she had “begged for information”.

Mokhari also said Breytenbach faced some serious allegations, which would arise during her disciplinary hearing on July 23. He said she could be facing criminal charges.

Another issue raised on Monday was Breytenbach’s laptop. She had refused to hand the laptop over because of personal content in the computer, according to her lawyer. This infringed on her right to privacy, said Redding. Breytenbach and her team of lawyers said they would hand it over after the removal of the private content. Mokhari said it was illegal to hand the computer to a third party, her lawyer.

Redding said her lawyer had not accessed the laptop.

Judge Hamilton Cele said he would make a ruling on the application next week.

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