Mokgoro inquiry: How charges were dropped against Mdluli
"Colleagues, I presume you are here to test my powers."
These were the words suspended special director of public prosecutions Lawrence Mrwebi told former prosecutor Glynnis Breytenbach when she tried to convince him not to withdraw charges against former Crime Intelligence boss Richard Mdluli.
Breytenbach revealed this when she testified at the Mokgoro inquiry, which is looking into Mrwebi's fitness to hold office and that of suspended deputy prosecutions boss Nomgcobo Jiba.
Mdluli was facing charges of fraud, theft and corruption for allegedly pillaging the Crime Intelligence slush fund.
Events leading to the withdrawal of charges against Mdluli
Breytenbach testified that in November 2017, Mdluli's attorneys delivered handwritten representations directly to Mrwebi, even though he was not yet the head of the Specialised Commercial Crimes Unit (SCCU) within the National Prosecuting Authority (NPA).
"I found it odd that the representations were addressed to Mrwebi in his capacity as head of the SCCU when that had not yet been gazetted and no one suspected his imminent appointment," Breytenbach said.
She also believed that the representations were handed to Mrwebi so that he would deal with the withdrawal of the matter.
According to Breytenbach, representations should have been made to her or North Gauteng Director of Public Prosecutions (DPP) Sibongile Mzinyathi.
Mrwebi also asked Breytenbach for a full report and the Mdluli docket.
Mrwebi's reaction to the report was that it was a poor piece of work and he asked for a summary of the docket, analysis of the evidence and analysis of the applicable law, as well as the full docket, Breytenbach testified.
Breytenbach said a copy of the docket was made because she did not trust Mrwebi with the original one. The second report again recommended that that prosecutions proceed against Mdluli.
In December 2011, Breytenbach received two memorandums from Mrwebi - one instructing her to withdraw charges against Mdluli and a consultative note setting out the reasons for the withdrawal.
"It was evident from these documents that Mrwebi had already taken a decision to withdraw the charges against Mdluli (not only provisionally) when these memos were written," Breytenbach said.
Withdrawing charges against Mdluli was unlawful
Breytenbach testified that Mrwebi did not consult with the DPP as required by law, in deciding to withdraw the charges and that Mrwebi inaccurately expressed views on the merits of the case.
"Whether there was evidence in the matter or not, is in my view not important for my decision in the matter," Mrwebi said in the note.
This line was also rubbished in a judgment in the Gauteng High Court in Pretoria, where the NPA was forced to reinstate charges against Mdluli as Mrwebi's decision to withdraw the charges was found to be unlawful.
"[Mrwebi] believed the referral to the Inspector-General of Intelligence was "dispositive of the matter". He took the decision without regard to the merits of a prosecution in the interests of justice and thus ignored mandatory relevant considerations, "Judge John Murphy said in 2013
"His decision was thus evidently based on errors of law and fact. He took account of irrelevant considerations and ignored relevant considerations."
Breytenbach and Mzinyathi went to go see Mrwebi to voice that they did not agree to withdrawing the charges because there was a prima facie case against Mdluli.
This was when Mrwebi told them that they were testing his powers and that he already informed Mdluli's attorneys that the charges were being withdrawn.
Breytenbach then tried to get Jiba, who was the acting National Director of Public Prosecutions to review Mrwebi's decision, but this was without success.
Breytenbach suspension
Breytenbach was suspended shortly after, after a complaint against her in a mining rights case involving Imperial Crown Trading (ICT) and Kumba Iron Ore subsidiary Sishen Iron Ore, which she was working on.
Breytenbach was cleared in a disciplinary hearing, but later charged criminally for allegations that included the unauthorised access to, and modification of, official laptop computer contents.
In 2018 she was acquitted of all charges. She left the NPA in 2014.
During her testimony on Tuesday, Breytenbach maintained that her suspension was to block the prosecution of Mdluli and that Mrwebi and Jiba played an integral part in protecting him.
The inquiry is expected to continue on Wednesday, when Mzinyathi is expected to testify.
