The parable of the general and the prosecutor

Let’s call it the Parable of the General and the Prosecutor. It’s a sinister, yet vivid, illustration of how the tools of justice have been commandeered by African National Congress (ANC) cadres for close-quarter in-fighting, as they trample all before them in their quest for political influence.

Lieutenant-General Richard Mdluli, head of national police crime intelligence, is in the one corner. He is a man with a murky past, which culminated in him being investigated for abuse state resources, murder, defeating the ends of justice, fraud and corruption.

In the opposite corner is his would-be nemesis, Deputy Director Glynnis Breytenbach of the Special Commercial Crime Unit in Pretoria. On the basis of evidence collected by the Hawks, she had wanted to prosecute Mdluli on an array of charges but her National Prosecuting Authority (NPA) bosses inexplicably withdrew the charges.

Instead of backing off, advocate Breytenbach apparently told her superiors that she would personally apply to court if the NPA’s decision was not reversed. Since then she has reported having shots fired at her car, as well as an attempt to force her off the road.

Last year Kholeka Gcaleka — who prosecuted Mdluli in an especially sordid case involving murder, kidnapping and defeating the ends of justice — was placed under police protection because of unexplained fears for her safety. The NPA’s response to Breytenbach was different however. It announced on Monday that it would conduct a “risk analysis” to determine whether Breytenbach deserved protection and noted, in passing, that she had that day been suspended from her job.

Breytenbach is no shrinking violet. She has a reputation for being unafraid of tackling the politically connected, including those involved in the arms deal and also handled a case involving the suspicious granting of lucrative mining rights to Imperial Crown Trading, a deal worth billions to President Jacob Zuma’s financial benefactors, the Gupta family and Zuma’s son, Duduzane.

It is supposedly in connection with the Imperial Crown Trading investigation, dating back some months, that Breytenbach has been suspended. Word is that the charge is an abuse of powers. A sceptical public is expected to believe that the timing of her suspension at this particular moment is entirely coincidental.

Whatever happens in the internal disciplinary inquiry, it is unlikely that Breytenbach will continue in her job. Even if acquitted, it is hard to imagine that she can have much faith left in the NPA’s ability to implement its stated mission “to ensure justice … by prosecuting without fear, favour and prejudice”.

Mdluli, in contrast, is thriving. Despite his seedy background, which in most countries would exclude him from the very job he now holds, he nevertheless nurtures ambitions to be the next National Police Commissioner. And whatever his recent misfortunes, which would have sunk anyone less well connected, he continues to campaign vigorously.

In a letter to Zuma, Mdluli lays all the blame for his woes at the door of his bosses, past and present, whom he accuses of plotting to discredit him. These include Bheki Cele, the suspended National Police Commissioner — who himself is embroiled in a corruption inquiry — as well as the head of the Hawks, the head of National Crime Detection and Operational Services, and the Gauteng Police Commissioner.

Bizarrely, Police Minister Nathi Mthethwa confirmed this week that the supposedly independent Hawks — who built the now withdrawn case against Mdluli — has to channel any judicial application for the interception of a suspect’s communications through Mdluli. That is, the man they were investigating. Hmm, something of a flaw, surely?

The police unfortunately seem not to apply the same standards of disciplinary practice that the NPA does, otherwise all these characters would have been suspended pending a hearing. Not that the shenanigans in police ranks could be unravelled by an internal process. Nothing less than an independent judicial inquiry would suffice and there is no sign that Zuma will countenance that.

Constitutions can be as elegantly crafted as one might wish but in the everyday it is what happens on the ground, not in the arena of juristic analysis, that matters. Belief in the law stems from a trust in the impartiality and effectiveness of the police and the prosecutorial authorities.

There can be little trust when the most senior police ranks are driven by factional conspiracies and open conflict. There can be little trust when the prosecuting authority’s behaviour arouses the same suspicions of political manipulation that so damaged it during the Thabo Mbeki years.

The moral of the story? In South Africa today it is better to be a slip-sliding general than a straight-shooting prosecutor.