Suspended NPA prosecutor Glynnis Breytenbach during her disciplinary hearing.File picture: Thobile Mathonsi

Pretoria - NPA director of prosecutions Lawrence Mrwebi spent Tuesday defending a decision to provisionally withdraw charges against former crime intelligence boss Lt-Gen Richard Mdluli.

He also had to explain his contention that colleague Glynnis Breytenbach may be guilty of defeating the ends of justice in a mining dispute probe.

Under cross examination by Breytenbach's advocate Wim Trengove SC at her disciplinary hearing in Pretoria, Mrwebi had to explain what he based his decisions on.

He was asked about his testimony at a meeting on December 5, 2011, when he met the director of public prosecutions for North Gauteng, Sibongile Mzinyathi.

When Mrwebi said he believed this was a consultation on whether the case file was problematic and if the investigation should be stopped, the hearing digressed into debate on whether consultation also meant a decision and whether agreement had been reached.

Mrwebi said he believed there had been “50/50 agreement” with Mzinyathi.

“We agreed on the problems, not on stopping the prosecution,” he said.

Last week Mrwebi testified that he said the case had loopholes and that the fraud charges against Mdluli should be provisionally withdrawn and reinstated when they had been fixed.

But Trengove put it to Mrwebi that his decision was unilateral and that there had not been agreement at the meeting.

“I do not believe so,” Mrwebi replied.

Trengove said Mrwebi had required “substantial agreement” to stop the prosecution, and Mzinyathi had not agreed with him.

Mrwebi responded: “No. There was no express agreement. His view was that the prosecution should go on.”

He rejected Trengove's submission that the decision to withdraw the charges was unlawful.

Earlier, the hearing was told Mrwebi had said the case against Mdluli belonged with the inspector general of intelligence. However he had not consulted the police or the inspector general about this.

“I did not think it was necessary, because I was looking into the matter independently,” he said.

Trengove wanted to know why he would allow the police to carry on with the investigation once the loopholes had been fixed, if he thought the case should be investigated by the intelligence department.

Mrwebi said the department would have access to documents they might need for the investigation.

Trengove submitted Mrwebi's approach was “to protect General Mdluli”.

Mrwebi countered: “That's nonsense. That's nonsense.”

Breytenbach was suspended last year. The NPA said it was because of her handling of criminal fraud and forgery complaints laid by Imperial Crown Trading (ICT) and Kumba Iron Ore over mineral rights to Kumba's Sishen mine in the Northern Cape.

She contends it was for her wishing to go ahead with the Mdluli prosecution.

Trengove said Breytenbach could face charges of defeating the ends of justice if the mining dispute complaint was true.

Last week there was testimony on what was considered an inappropriate relationship with Kumba lawyer Michael Hellens, as they had worked together on drawing up warrants against ICT.

Trengove presented him with a transcript of a conversation at which an ICT director, Archie Luhlabo, was told at lawyer Nazeer Cassim's office of the possibility of him (Luhlabo) becoming a state witness, in a message believed to have been conveyed by Hellens.

Breytenbach was linked to this conversation because she had telephoned Cassim earlier to find out if he was Luhlabo's lawyer.

“Bullying” the director to become a state witness was earlier cited as a complaint against her. When asked to point out in the transcript where Breytenbach was mentioned, Mrwebi said she was not.

Mrwebi said he was not familiar with the details of the ICT and Kumba investigation and had not seen the dockets.

The hearing continues on Wednesday. - Sapa