Adv Johan Kruger, Director: Centre for Constitutional Rights
The Centre for Constitutional Rights (CFCR) welcomes the ruling by a National Prosecuting Authority (NPA) disciplinary hearing which cleared senior prosecutor, Adv Glynnis Breytenbach, of any wrongdoing.
In handing down his ruling in relation to charges brought against Breytenbach by the NPA, the chairperson of the disciplinary hearing, Adv Selby Mbenenge SC, stated that “the guilt of the employee [Breytenbach] on this plethora of charges has not been proven and she can therefore not be found guilty“. Earlier this week, the NPA fastidiously explained in an unrelated media statement how and when it will prosecute someone – and when not. According to the NPA, “the existence or lack of evidence plays a critical role in the final decision“. The same criteria were apparently not applied when the NPA brought disciplinary charges against Breytenbach. In relation to the primary charge of failing to act impartially whilst investigating a matter involving a mining rights dispute between Kumba Iron Ore and Imperial Crown Trading, Mbenenge found that there was not “an iota of evidence” that Breytenbach acted improperly. Why then did the NPA continue with disciplinary measures against her with conviction?
Adv Breytenbach has always contended that her suspension and subsequent disciplinary hearing were brought about by her refusal to withdraw fraud charges against former South African Police Service (SAPS) Crime Intelligence head, Richard Mdluli. In this regard, Breytenbach previously asserted that withdrawing charges against Mdluli was “preposterous” as he certainly had a prima facie case to answer to. NPA Specialised Commercial Crime Unit head, Lawrence Mrwebi, nevertheless withdrew all charges against Mdluli, even though Breytenbach was of the opinion that Mrwebi had no legal basis to do so. Both Mrwebi and acting National Director of Public Prosecutions (NDPP), Adv Nomgcobo Jiba, steadfastly denied that the Mdluli-case had been the reason for Breytenbach’s suspension and disciplinary sanction.
Incidentally, in April 2012 – shortly after Breytenbach was suspended – Adv Jiba told the parliamentary Portfolio Committee on Justice & Constitutional Development that “It [would] be a sad day in the country if we [the NPA][took] our decisions because of political pressure…There [was] no instruction that has been given to any deputy Director of Public Prosecutions or any other person to withdraw the charges against General Mdluli“. Whether her statement was accurate will be determined by the High Court when, in the next couple of months, it will be reviewing the NPA’s decision to withdraw charges against Mdluli. However, considering a recent study by the Democratic Alliance (DA) on how the criminal justice system has been politicised under President Zuma, one may be excused for thinking that the sad day has already presented itself.
As a matter of fact, the rationality, legality and constitutionality of the NPA’s conduct – its ability to fulfil its constitutional duty without fear, favour or prejudice – are up for review in a number of matters. The Mdluli-case; withdrawal of charges against President Zuma; and the NPA’s brazen disregard of an order by the Supreme Court of Appeal (SCA) to produce its record of decision (including the controversial “spy-tapes”) which led to the withdrawal of criminal charges against President Zuma, are but a few examples justifying real concern.
At the heart of the NPA’s problems lies an issue which the Constitutional Court aptly addressed in Democratic Alliance v The President of the Republic of South Africa & Others (the case in which it upheld the SCA decision to set aside the President’s appointment of Adv Menzi Simelane as NDPP): the danger of politicising the NPA. In the latter case, the Court remarked that the NDPP “must be non-political and non-partisan… [a] non-political chief executive officer directly appointed by the President” instead of “a political appointee“. Without an NDPP with independence of mind, the NPA is at risk of being politicised. Moreover, according to the Constitutional Court, the NPA is closely related to the function of the judiciary and “located at the core of delivering criminal justice“. If the NPA and the NDPP end up favouring and fearing politicians instead of the law, the judiciary is deprived of the opportunity to decide who is guilty and who is not and criminal justice fails to function without prejudice. This would leave those who should be criminally charged going free and those who question the former, being persecuted – possibly without an iota of evidence.