The high court in Pretoria has dismissed an application which sought to set aside President Cyril Ramaphosa’s appointment of Andy Mothibi as the head of the National Prosecuting Authority (NPA).
The case initiated by lawyer Barnabas Xulu’s law firm wanted Mothibi’s appointment reviewed and set aside on procedural irregularity because he was not interviewed by an advisory panel that interviewed candidates in a public process.
The panel did not recommend any of the candidates interviewed and Ramaphosa appointed Mothibi as former NPA head Shamila Batohi reached retirement age at the end of January and had to vacate office.
The president’s legal representative, advocate Dikeledi Chabedi, argued Xulu failed to plead a case engaging the court’s jurisdiction and should be dismissed.
Judge Etienne Labuschagne, in his judgment on Tuesday, said the president, on the appointment of Mothibi, was acting in a procedurally rational manner in changing tack after the panel did not recommend any candidates interviewed.
“The applicant [Xulu] is confusing consistency with rationality. It is arguably unfair to appoint [Mothibi] without him being screened by an advisory panel,” he said.
“Time was running out as the incumbent would vacate her position at the end of January. The fact that the president appointed a person whose fitness is not being questioned speaks of a rational decision.”
The panel decided not to recommend any of the candidates interviewed and filed a report with the president on December 12. Batohi had to leave office by the end of January when she reached retirement age.
Those who were in the race for the position included former NPA head Menzi Simelane; Independent Directorate Against Corruption (Idac) head Andrea Johnson; former Investigating Directorate head Hermione Cronje; and advocates Nicolette Bell, Adrian Mopp and Xolisile Khanyile.
Having appointed an advisory panel once, the president was not obliged to appoint another to advise on appointing Mothibi, Labuschagne said the president was legally empowered to appoint Mothibi without undue procedural restraints.
“The president was, however, not constrained to again use an advisory panel to appoint [Mothibi].”
“The second decision [appointing Mothibi] is a fresh decision after a failed advisory process, based on a power to appoint, untrammelled by the requirements of fair process,” he said.
“The application must therefore fail.”
Initially Xulu’s litigation was to prevent Ramaphosa from appointing a national director of public prosecutions, based on recommendations of the advisory panel, which interviewed candidates.
Xulu’s main gripe was that his firm submitted an objection to the candidature of Cronje to the panel.
He argued the process was flawed and irregular because Cronje was not given the objection on time to respond in detail to the panel. Cronje, however, did address the objection before the panel.
The litigation had been withdrawn twice before the firm initiated a fresh application last month with amended prayers challenging Mothibi’s appointment.
Xulu maintained the process was flawed, despite the president not appointing any of the candidates interviewed by the panel.
Labuschagne found that Xulu has no legal standing [locus standi] to challenge the matter.
“That should be the end of the matter. This court’s review jurisdiction is therefore not engaged,” Labuschagne judgment reads.
“The application is dismissed.”
Xulu’s issue with Cronje stems from the time his firm worked for the departments of agriculture, forestry & fisheries, and environmental affairs.
The firm had a case that involved the NPA’s asset forfeiture unit in the Western Cape headed by Cronje at the time and there was a dispute on a case between NPA and the firm.
In 2021 Xulu’s company was ordered to pay R20m the firm received pursuant to writs of execution and notices of attachment in litigation with the departments.
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