By Johnathan Paoli
The National Prosecuting Authority (NPA) has ordered the withdrawal of Public Finance Management Act (PFMA) charges against suspended National Police Commissioner General Fannie Masemola, finding there are no reasonable prospects of securing a successful prosecution.
In a statement on Tuesday, the NPA said the decision by National Director of Public Prosecutions Andy Mothibi follows a review of the case, including evidence gathered by the Investigating Directorate Against Corruption (IDAC), a Case Assessment Panel report and an assessment by an independent senior counsel.
“Enrolling a case for prosecution where evidence is not sufficient to sustain a successful prosecution is not in the public interest. A prosecution that proceeds while evidence is insufficient to sustain a successful prosecution and omits material exculpatory considerations, does not accord with NPA mandate,” Mothibi said.
Mothibi invoked Section 179(5)(c) of the Constitution, read with Section 22(2)(b) of the National Prosecuting Authority Act, which empowers the NDPP to intervene in prosecution processes where NPA policy directives have not been complied with.
The charges have not yet been formally withdrawn in court, but the NPA said prosecutors would arrange for Masemola to appear before court so that the case can be withdrawn, although no date has yet been announced.
The decision effectively ends the immediate prosecution of Masemola on the PFMA charges, but the NPA has now turned its attention to how the case came to be enrolled in the first place.
Mothibi intends reporting the matter to the IDAC Judge and making the Case Assessment Panel’s report available for an investigation into the circumstances surrounding the prosecution team’s handling of the case.
The investigation will examine how prosecutors assessed the evidence, decided to enrol the matter and applied the law, with a view to determining whether any misconduct occurred.
The NPA stressed that misconduct has not been established.
Despite Masemola’s legal representatives having made representations, the NPA said they had no bearing on the outcome because Mothibi had already decided to withdraw the charges following the internal assessment and review of the evidence.
The NPA’s decision comes amid a broader review of cases handled by IDAC under its IDAC Reset Programme.
The authority said the process of assessing and reviewing all IDAC cases would continue, signalling that the scrutiny triggered by the Masemola matter extends beyond the national commissioner’s prosecution.
Masemola was charged with four counts of contravening section 38 of the PFMA in connection with the awarding of a SAPS medical examination contract to Medicare24 Tshwane District, a company linked to controversial businessman Vusimusi “Cat” Matlala.
While it was alleged that Masemola, in his capacity as SAPS accounting officer, failed to act promptly after being alerted to alleged irregularities in the contract, allowing about R50 million to be paid before the contract was stopped, he was not charged with corruption or fraud.
The charges subsequently came under intense scrutiny at the Madlanga Commission of Inquiry, where chairperson Mbuyiseli Madlanga questioned whether IDAC had the legal mandate to pursue standalone PFMA charges against Masemola and suggested his inclusion alongside people facing corruption and fraud charges could have prejudiced his reputation.
But the NPA stressed that the decision to withdraw the charges does not amount to a finding that no irregularity occurred in the circumstances underlying the original investigation.
Rather, it has determined that the available evidence does not provide a reasonable prospect of securing a conviction on the charges that were brought against him.
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