The case of Moroadi Cholota, former personal assistant to Ace Magashule, has become a lightning rod for allegations of prosecutorial misconduct by National Prosecuting Authority.
At its core lies a stark contradiction: the NPA’s 2020 declaration to the court that Cholota would testify as a state witness, despite no formal agreement with her. This act, which is compounded by procedural irregularities and ethical violations, exposes systemic flaws in the NPA’s adherence to legal standards and its duty to uphold justice.
Section 204 of the Criminal Procedure Act governs the designation of state witnesses. This provision mandates that prosecutors secure a witness’s cooperation through indemnity agreements, which are subject to judicial scrutiny. Critically, the witness must testify “frankly and honestly”, and their immunity is contingent upon providing full disclosure.
However, Cholota’s affidavit reveals that the NPA bypassed these requirements. She says she learnt about her label as a state witness in November 2020 through media reports, not official channels. By her account, the NPA never formally discussed this role with her, nor did they secure her voluntary consent, a foundational element of Section 204.
This unilateral declaration undermined procedural fairness and Cholota’s rights, as she was later charged when she refused to cooperate – a punitive escalation suggesting coercion rather than due process. The NPA’s code of conduct explicitly requires prosecutors to act with integrity, objectivity and impartiality while avoiding conflicts of interest and ensuring transparency. Yet, in Cholota’s case, the NPA appears to have weaponised her status as a witness to pressure Magashule, creating a narrative of insider cooperation.
Key ethical violations include misrepresentation to the court. Declaring Cholota a state witness without her consent misled the judiciary, violating the duty to act “without fear, favour, or prejudice”.
Then arises the issue of failure to disclose material information. Prosecutors are obligated to disclose exculpatory evidence under constitutional principles akin to the US Brady doctrine. By withholding Cholota’s ignorance of the decision, the NPA denied the court critical context about her cooperation.
This issue speaks to abuse of process. Charging Cholota after she resisted cooperation suggests retaliatory intent, contradicting the NPA’s mandate to pursue justice, not personal vendettas.
This pattern mirrors broader criticisms of the NPA’s tactics. In 2022, Gauteng Judge President Dustin Mlambo condemned similar abuses, such as duplicating charges and affidavits to harass defendants– a practice allegedly employed against businessman Kishene Chetty.
Such conduct erodes public trust and aligns with Cholota’s claim that the charges against her are “punishment” for non-compliance.
The Cholota saga underscores systemic issues within the NPA, such as political pressure and selective prosecution. The NPA’s focus on high-profile corruption cases, such as the R255-million asbestos scandal, has led to rushed, politically charged prosecutions.
While the NPA’s 2021/22 annual report touts convictions in state capture cases, it sidesteps allegations of procedural abuse.
It also speaks of the erosion of witness protection. Cholota’s treatment – from unconsented witness designation to criminal charges – sets a dangerous precedent. It discourages potential whistleblowers, fearing retribution if they resist prosecutorial demands.
Lastly, there appears to be an element of judicial complicity. The courts have a duty to scrutinise prosecutors’ actions. Yet, the Bloemfontein Magistrate’s Court allowed the NPA to proceed with charges despite glaring inconsistencies, raising questions about judicial oversight.
The NPA’s conduct in this case reflects a troubling trend of weaponisation of prosecutorial power to sideline political opponents or silence critics.
Moreover, the NPA’s failure to comply with its code of conduct exposes a gap between policy and practice. Cholota’s assertion that investigators threatened her during interviews in the US further underscores this disconnect.
The Cholota case is not an isolated incident but a symptom of deeper institutional rot. For the NPA to regain credibility, it must conduct an independent inquiry into prosecutorial overreach in Cholota’s designation as a witness.
The prosecuting authority must also adhere strictly to Section 204 of the Criminal Procedure Act and its code of conduct, ensuring witness cooperation is voluntary and transparent, and address systemic biases that prioritise political victories over judicial integrity.
Until then, the NPA risks becoming a tool of intimidation rather than justice – a betrayal of its constitutional mandate and South Africa’s fragile democracy.
- Stone is political editor
