Breytenbach position not affected: lawyer

The transfer of prosecutor Glynnis Breytenbach does not take away the position she held before, the Labour Court in Johannesburg heard on Tuesday.

"This transfer does not take away the position that she was appointed into, which is deputy director of public prosecutions," said William Mokhari, SC, for the National Prosecuting Authority (NPA).

"The position that she has been deployed to does not take away her right as a prosecutor to prosecute matters," he said.

Mokhari said the Labour Court could not pronounce on a matter where an investigation was still continuing, and there were laws "with a built-in mechanism" to protect the rights of the employee.

"Of course, everybody would like to choose what type of matters to deal with..., but sometimes one has to take into account that if we talk about the prosecution role of the NPA, all matters have to be prosecuted irrespective of how we give a particular weight to those matters," he said.

Mokhari said the NPA was aware that Breytenbach was dealing with commercial crime cases, and therefore it would give her the opportunity to deal with such matters in her role after her transfer.

"It was to try to make sure that the transfer has minimal disruption as possible to her career, that is why even the post that she was appointed to, it remained that way and unaffected."

However, there were certain aspects of her work that could be affected by the transfer.

He said a suspension could not be construed to mean it was business as usual.

A suspension meant that the employee’s rights were somehow affected, as long as it was on a temporary basis.

"Transfer will also have the same effect. It is not possible that you can transfer somebody to the same position, because where are you going to get that position without creating it?" he asked.

"In a transfer, you just have to make sure that it is a minimal disruption as possible to the affairs of the employee, but ensure that it is as short as possible... then it is what we call a permissible intrusion."

Breytenbach is making an urgent application to be restored to her old job as regional head of the specialised commercial crimes unit.

In April 2012, Breytenbach was suspended and later faced a lengthy disciplinary hearing on 15 charges.

These included that she had not acted impartially when investigating a mining rights dispute involving Kumba Iron Ore, Kumba's Sishen mine in the Northern Cape, and Imperial Crown Trading.

She was accused of "improper relations" with Sishen's lawyer Mike Hellens.

On May 27, a NPA disciplinary hearing cleared her of all charges.

The following day, the NPA announced it would bring a court challenge against the ruling because it considered the findings "factually incorrect and legally unsustainable".

Breytenbach was allowed to return to work, but on her return found that the NPA intended sending her to a different office.

She had claimed that her suspension was related to her opposition to a decision to withdraw fraud and corruption charges against former police crime intelligence head Richard Mdluli.