Prosecutor Glynnis Breytenbach. File photo: Thobile Mathonsi

Pretoria - National Prosecuting Authority (NPA) prosecutions director Lawrence Mrwebi was accused on Wednesday of giving two “irreconcilable versions” why the prosecution of former intelligence head Lt-Gen Richard Mdluli was stopped.

He was testifying in the disciplinary hearing of suspended NPA advocate Glynnis Breytenbach in Pretoria.

The first version was that there were loopholes in the case file and that Breytenbach and her colleague, advocate Sibongile Mzinyathi, could re-enrol the fraud case when these had been fixed, the hearing was told.

The second was that the case was the domain of the Inspector General of Intelligence and the Auditor General (AG).

Breytenbach's counsel Wim Trengove SC put this to Mrwebi while cross examining him.

Trengove read a memorandum from Mrwebi to Breytenbach in which he explained his decision to provisionally withdraw charges against Mdluli and his co-accused Hein Barnard.

Breytenbach believes she was suspended in April 2012 to stop her prosecution of Mdluli, amid suggestions of political interference.

However, the NPA has said her suspension was rather because of her handling of a criminal investigation relating to a mineral rights dispute between mining companies Imperial Crown Trading (ICT) and Kumba Iron ore over Kumba's Sishen mine.

The NPA said it had followed up a complaint by ICT that she had been focusing too heavily on them, and had been colluding with Kumba's lawyer Michael Hellens.

On Wednesday, Trengove read out communication to Breytenbach from Mrwebi after she wrote to him to ask that the case against Mdluli continue even though he had decided it be provisionally withdrawn.

Mdluli and Barnard had faced charges of fraud relating to alleged misuse of a crime intelligence fund.

In his letter, Mrwebi said the AG had examined a transaction allegedly undertaken by Mdluli and Barnard and had found nothing untoward. He wrote that the matter had been given to Parliament's joint committee on intelligence.

Mrwebi wrote that he wondered whether the police and prosecutors should be questioning the integrity of these institutions.

Trengove said that nowhere in the memorandum did Mrwebi refer to the need for the prosecutors to build a stronger case and that they could go ahead with it again when they were ready.

This was also his explanation on Friday of why he said the case should be provisionally withdrawn from the court roll.

Answering Trengove's question, the softly spoken Mrwebi said there was context to the “serious problems” in the Mdluli matter.

He said while the police investigation was underway he received representations from two senior counsel in criminal intelligence who referred him to classified information, some of which he said was already in the public domain.

They told him about a situation which amounted to “abuse of process”.

“A certain prosecutor, I will call him prosecutor Y, went to front companies with threats Ä 'if they don't do a or b, their companies would be closed'. That was a chilling story,” he said.

One of the officials gave him the information from the AG's report and he felt the NPA should not get involved.

He did not see AG's report, but felt that although they had looked at the bigger picture, they were the ones who could “zoom in” on it.

Trengove rounded on him and said: “Mr Mrwebi, you run two irreconcilable answers at the same time. Your evidence is not capable of being taken seriously.”

Trengove wanted to know why the NPA and the police would balk at a criminal investigation, even if other institutions such as the AG's office had looked at it already.

He said Mrwebi, by using evidence provided by anonymous sources, was desperately trying to justify his decision to stop the prosecution of Mdluli and to protect a “friend of Acting National Director of Public Prosecutions Nomcobo Jiba”.

Trengove explained the use of the word “friend” by saying that Mdluli had written an affidavit for Jiba when she was suspended in 2009, and had submitted an affidavit supporting her.

“I find it very strange,” said Mrwebi, who repeatedly rebuffed this suggestion.

Earlier, the hearing dealt with a complaint laid by Ronald Mendelow, lawyer for ICT, against Breytenbach.

Trengove said Breytenbach was sent a letter on April 18, 2011, five-and-a-half months after the complaint against her was laid, and told she had until April 25 to respond if she wished.

Mrwebi said he new nothing about this process, but Trengove questioned how he could not know about the investigation and suspension of a senior person. He said Breytenbach was being lined up for suspension because of the Mdluli matter.

A letter of suspension for Breytenbach was signed by Jiba on April 23, and was given to Breytenbach on April 30.

Trengove submitted she was not given time to answer to the allegations made against her and could not get reasons for the complaint. - Sapa