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Top prosecutor Glynnis Breytenbach is facing a criminal charge for deleting evidence from her work laptop before returning it to the National Prosecuting Authority (NPA).
“A forensic report found that certain evidence was intentionally destroyed and deleted from the laptop,” NPA integrity management unit acting senior manager Hercules Wasserman testified at Breytenbach’s disciplinary hearing in Pretoria on Tuesday.
Breytenbach pleaded not guilty on Tuesday to 15 charges. She was suspended in April.
The charges include abuse of authority, improper conduct, gross dereliction of duties, conflict of interest and gross insubordination.
Breytenbach’s suspension allegedly relates to her involvement in the investigation into the Kumba Iron Ore, Sishen and Imperial Crown Trading case.
The hearing was told that e-mails found on Breytenbach’s laptop could amount to unethical conduct.
Wasserman said his team had found a number of e-mails between Breytenbach and Mike Hellens, a senior counsel for Kumba.
Wasserman said the integrity unit had been asked to investigate Breytenbach following a complaint by Mendelow Jacobs Attorneys on behalf of Imperial Crown Trading in December.
The NPA alleges that Breytenbach failed to act impartially in that she favoured Sishen over Imperial Crown Trading in her probe. It also alleges she had an improper relationship with Hellens.
It is alleged that Breytenbach abused her authority in terms of the NPA’s code of conduct by colluding with counsel for Kumba/Sishen to exert improper influence and control over the direction of the criminal investigation into Imperial Crown Trading.
It is further alleged that she was negligent by allowing counsel for Kumba Iron Ore/Sishen to assist and advise her in the course of action in the criminal investigations into Imperial Crown Trading.
Further allegations include that Breytenbach is guilty of interfering with the proper administration of justice. This relates to her alleged attempts to prevent a land surveyor for Imperial Crown Trading from handing in an affidavit in respect of the search and seizure warrant executed at its offices in Kimberley.
Further allegations include Breytenbach’s failure to hand in her official laptop.
When it was eventually handed over, it was given to a third party – her lawyer Gerhard Wagenaar – who is not an employee of the NPA.
Breytenbach is also said to have caused the NPA disrepute by communicating information to the media after her suspension.
She firmly believes she was suspended to prevent her from prosecuting suspended crime intelligence boss Richard Mdluli.
William Mokhari, SC, for the NPA, said that the charges related to Breytenbach’s alleged improper handling of the Kumba Iron Ore/Sishen and Imperial Crown Trading case between September 2010 and February this year.
The committee heard from Wasserman that Breytenbach had failed to hand in the laptop that had been given to her by the prosecuting authority for official NPA business.
Wasserman testified that he had approached Breytenbach on February 7 – after completing a preliminary investigation – to inform her that she had to hand in her laptop.
The committee heard that Breytenbach was accompanied by her lawyer.
He agreed to call Wasserman later that day to make arrangements for the handover of the laptop as Breytenbach had left it at home.
“I find it very strange that a senior public prosecutor can afford to leave her computer at home,” Wasserman said.
The committee heard that Breytenbach’s lawyer had asked that a private forensic IT expert be appointed to make a copy of the laptop’s hard drive so that Breytenbach would be able to continue with her work.
“It was a reasonable request and we had no problem with it,” Wasserman said. He was surprised when Wagenaar contacted him the next day with a “completely different arrangement”.
“He had then stipulated a different set of rules by which Breytenbach would hand over her laptop,” Wasserman said.
He had tried to contact Breytenbach a day after the meeting – only to find out that she had gone abroad on vacation, Wasserman testified.
During this time she had left her laptop with Wagenaar.
“All official laptops are password protected,” Wasserman said.
“This means she had to have given her password to Mr Wagenaar who is not an employee of the NPA.
“It was of serious concern that an NPA laptop was in the hands of a third party, especially given the highly sensitive nature of the information on it relating to high-profile cases.”
The computer contained highly sensitive information and Breytenbach had thereby compromised its confidentiality and sensitivity, he said.
Wasserman testified that it was found that information and data had been deleted.
This was an unauthorised modification of the contents with the intention to prevent or hinder access to a programme or data, he said.
Breytenbach’s internal disciplinary hearing had been delayed since June 19 due to an application brought by Media24 and M-Net to be given permission to attend the hearing.
On Monday, a Pretoria High Court judge ruled that the media could be present at the hearing and the NPA requested a postponement to evaluate the ruling of the judge.
The hearing continues.