The dust has not yet settled in the legal debacle which seeks to set aside President Cyril Ramaphosa’s appointment of Andy Mothibi as the head of the National Prosecuting Authority (NPA).
Lawyer Barnabas Xulu’s law firm has filed an application to appeal a judgment of the high court in Pretoria that dismissed its case seeking to review and set aside Mothibi’s appointment on procedural irregularity grounds.
The firm wants the new NPA boss’s appointment overturned because Mothibi 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 the office.
Judge Etienne Labuschagne, in his judgment in April, sent the law firm packing, dismissing the application and saying the president acted in a procedurally rational manner in changing tack after the panel did not recommend any of the candidates interviewed.
“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,” Labuschagne said.
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 interviewed 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.
The law firm now wants a full bench or the Supreme Court of Appeal (SCA) to decide on the matter.
“The court a quo (lower court) erred in holding that the president’s decision to appoint (Mothibi) was rational and that procedural fairness was not a requirement. This finding constitutes a material misdirection,” the court papers read.
“The applicant’s challenge is not based on procedural fairness per se, but on rationality.
“The president established a specific public process for the appointment of the NDPP, mandating the panel to conduct an open and transparent process including public participation, shortlisting, interviews and vetting and to submit the names of three suitable candidates. Having created this process, the president bound himself to follow it.”
The president’s decision to appoint a candidate outside that process, the law firm argues, is “arbitrary and irrational”.
The law firm further challenges the court’s finding it had no legal standing to challenge the appointment.
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 to the panel an objection to the candidature of Cronje and argued the process was flawed and irregular because Cronje was not given the objection on time to respond in detail to the panel.
Xulu maintained the process was flawed, despite the president not appointing any of the candidates interviewed by the panel.
“There are compelling reasons why the appeal should be heard, even if this honourable court finds that there are no reasonable prospects of success on any of the grounds set out above,” the appeal papers read.
“The proper interpretation of locus standi under section 38 of the constitution for participants in public participation processes, particularly where the participant has suffered direct harm from the conduct complained of and the process has been completed.
“By dismissing the application without engaging with the substantive constitutional challenges raised by the applicant, the court a quo failed in its constitutional obligation to provide effective judicial oversight over the exercise of public power.”
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 the case between the 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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