Decision on Breytenbach in two weeks: arbitrator

Suspended NPA prosecutor Glynnis Breytenbach will know within two weeks whether she can return to work, an arbitrator said in Pretoria.

Mashudo Matlala was speaking after receiving final verbal submissions from the National Prosecuting Authority and Breytenbach's legal representative.

"This marks the end of the arbitration proceedings before me. I will consider all the arguments that have been presented," said Matlala.

"[The decision] will be submitted to the [Public Service Bargaining] Council on the 22nd of this month, and it will be transmitted to the parties."

He said the arbitration process had been a meaningful exercise, with strong arguments put forward.

The arbitration hearing, at the Public Service Bargaining Council chambers in Centurion, has been held in parallel with Breytenbach's disciplinary hearing at the NPA's headquarters in Silverton, east of Pretoria. That hearing, which is chaired by Selby Mbenenge, resumes on May 6.

Breytenbach is head of the NPA's regional specialised commercial crime unit.

William Mokhari SC, for the NPA, submitted on Friday that Breytenbach had been suspended because of the serious allegations of misconduct against her.

"The belief of the employer is that her presence at work might jeopardise the investigations.

"It was incumbent on the employee to come before you [the arbitrator] and say the belief of the employer is unreasonable," said Mokhari.

"A belief that a senior employee, who has access to sensitive information, access to the laptop and all the information of the NPA with regards to the prosecution of crime, becomes accused of being biased in the Kimberley matter, the belief of the employer is reasonable."

Breytenbach was suspended last year, allegedly for failing to act impartially in her investigation of a dispute between Imperial Crown Trading (ICT) and Sishen/Kumba Iron Ore over mining rights in the Northern Cape.

An attorney for ICT, Ronald Mendelow, wrote a complaint to the then national director of public prosecutions Menzi Simelane. Mendelow claimed Breytenbach was "too close" to criminal lawyer Mike Hellens -- a situation which would compromise her independence.

Hellens was on a brief for ICT's rival, Kumba Iron Ore Limited.

On Friday, Mokhari said that if Breytenbach had elected to testify, the NPA would have demonstrated that she had been involved in acts of misconduct.

"We were going to demonstrate to her that, as a senior official of the NPA, she refused to give us the laptop when we said we wanted the laptop for the purpose of investigating her," said Mokhari.

"By the time she gave us the laptop, the information had been deleted. That is what we were going to demonstrate. There is a reason she refused to testify, because that information was going to be placed before you [the arbitrator]."

Mokhari said Breytenbach had not given the arbitrator an assurance she would "behave well" if she returned to work.

"You don't have a promise from her that 'I will behave well until the findings of the chairperson [Mbenenge] come and when those findings come saying I am dismissed, I will respect it and leave the office happily'. She doesn't say all those things."

Andrew Redding, for Breytenbach, said her suspension was an unfair labour practice that should be ended immediately, enabling her to return to work.

"The suspension was done to punish her, to remove her from the workplace. It was an attempt to silence and marginalise her, and was done without any regard for [her] rights as an employee," said Redding.

He said the NPA, which was entrusted to enforce justice in the country, "was not being just to one of its own".

An employee in Breytenbach's position could claim financial recourse from the employer, said the lawyer.

"We are not asking for, although we could be asking for, money for that unfair [practice]. We are asking for the lifting of that unfair suspension," said Redding.