SA’s constitutional architecture rests on a simple but uncompromising principle: power must always be exercised rationally, lawfully, and in good faith.
Nowhere is this more critical than within the prosecuting authority, which occupies a uniquely consequential position in determining who is charged, on what basis, and in whose interests. When that power is exercised improperly — or even appears to be — the consequences extend far beyond any single case. They strike at the heart of the rule of law itself.
Let me explain.
Recent developments surrounding the prosecution of national police commissioner Gen Fannie Masemola raise precisely these concerns.
Sworn testimony before the ad hoc committee investigating allegations by the KwaZulu-Natal police provincial commissioner, Lt-Gen Nhlanhla Mkhwanazi, established that Masemola acted in accordance with his legal obligations.
Masemola responded to concerns regarding the R360m Medicare24 Tshwane tender, escalated them appropriately, and relied on assurances from the authorised supply chain authority — the then-acting divisional commissioner, Maj-Gen Senobia Hankins — that all procurement processes complied with applicable prescripts.
This evidence was not peripheral. It goes directly to the core legal question: whether there was negligence, let alone gross negligence, on the part of the SA Police Services’ accounting officer — namely, Gen Masemola.
Crucially, this testimony was neither challenged nor contradicted.
In any rational prosecutorial framework, such evidence would be dispositive. Yet, the charges persist.
This disconnect is not merely troubling — it is dangerous. Prosecutors are constitutionally bound to act impartially and to pursue cases only where there is a reasonable prospect of success.
The selective use — or worse, the disregard — of exculpatory evidence is not a technical lapse. It is a fundamental breach of prosecutorial ethics.
Public Interest SA’s media statement issued last week underscores this concern, warning of an “apparent abuse of power” within the Investigating Directorate Against Corruption and highlighting a broader pattern of institutional inaction within the National Prosecuting Authority (NPA).
While the details of the Masemola matter are specific, the implications are systemic.
If prosecutorial discretion can be exercised in a manner divorced from the evidentiary record, then the safeguards that underpin our criminal justice system begin to erode.
SA is no stranger to the corrosive effects of institutional capture.
The lessons of the state capture era were clear: the abuse of public power — whether through action or omission — can hollow out institutions from within.
Indeed, policy discussions following the Zondo commission have explicitly contemplated the creation of a statutory offence for “abuse of public power”, recognising the need to hold public officials accountable for conduct that undermines governance and legality.
What makes the present situation particularly concerning is that the alleged abuse does not arise from overt corruption, but from the misuse of lawful authority.
This is a more insidious threat. It cloaks itself in the language of legality while subverting its substance.
The NPA has long been understood as a critical check against abuses within the system. Its legitimacy depends not only on its ability to prosecute wrongdoing but on its fidelity to fairness, objectivity, and the evidence. When those principles are compromised, the NPA risks becoming an instrument of selective enforcement rather than a guardian of justice.
Equally troubling is the apparent institutional inertia.
Silence, in this context, is not neutral. It signals either acquiescence or an inability to confront potential misconduct within its own ranks. Neither is acceptable.
At stake is not the reputation of any individual but the credibility of the prosecuting authority itself. Public confidence in the justice system is fragile. It is built slowly, through consistent adherence to principle, and can be eroded rapidly when those principles are perceived to be selectively applied.
The question, therefore, is not whether prosecutors can make errors — they inevitably will — but how those errors are addressed.
Where evidence suggests that prosecutorial decisions are irrational, unsupported, or improperly motivated, accountability must follow. This is not a matter of discretion; it is a constitutional imperative.
Institutions do not protect themselves through denial; they protect themselves through accountability.
SA stands at a critical juncture in its ongoing effort to rebuild and safeguard its institutions. The integrity of the prosecuting authority is central to that project.
If the exercise of prosecutorial power is allowed to drift from evidence-based decision-making into the realm of selective or irrational enforcement, the consequences will be profound and far-reaching.
The rule of law demands ... that power be exercised with discipline, integrity, and fidelity to the facts.
— Tebogo Khaas
The rule of law demands more. It demands that power be exercised with discipline, integrity, and fidelity to the facts. Where that standard is not met, it is not only appropriate but necessary to ask hard questions — and to insist on answers.
Anything less would amount to a quiet but consequential retreat from the very principles that define our constitutional democracy.
- Khaas is founder and chairperson of Public Interest SA
