Advocate Andy Mothibi may face court papers on his first day as National Director of Public Prosecutions, following a legal challenge to his appointment by Cape Town-based law firm B Xulu and Partners. The firm argues that the advisory panel used in the selection process was unconstitutional. Mothibi, who was not interviewed for the position, assumes office after being appointed by President Cyril Ramaphosa, at a time when renewed calls for criminal justice reform are growing.
Speaking to VOC News on Monday, Senior Researcher at the Dullah Omar Institute at the University of the Western Cape, Dr Jean Redpath, explained that the legal challenge did not arise in isolation. “The challenge is actually that he’s simply added Advocate Mothibi as the tenth respondent to an existing case challenging the entire process the president set up to appoint a new National Director of Public Prosecutions,” she said.
Redpath noted that while the applicant in the case has a controversial litigation history, the challenge raises important legal questions. “His case does have some merit in the sense that proper process probably wasn’t followed,” she said. She pointed out that although the Constitution states that the president appoints the NDPP, it does not prescribe a specific process.
She referred to the 2012 Constitutional Court judgment that overturned the appointment of former NDPP Menzi Simelane. “The court found it was irrational to appoint him without taking into account adverse findings made against him. That judgment is quoted extensively in this current case,” Redpath explained.
Redpath added that civil society organisations, as well as the Zondo Commission, have long argued for legislative reform to limit the president’s discretion in appointing senior prosecutors. “The Constitution requires that the prosecuting authority operate without fear, favour or prejudice. That implies safeguards must exist in how appointments are made,” she said.
She raised concerns about several aspects of the recent process, including the composition of the advisory panel and the exclusion of some applicants. “There were question marks over why certain professional bodies were excluded and why some candidates were disqualified for not having led large organisations, a requirement that does not exist in law,” she said.
Crucially, Redpath highlighted that Mothibi himself was not interviewed. “He was not subjected to the same scrutiny as the other six candidates,” she said. While acknowledging that Mothibi may be a capable candidate, Redpath warned of the broader implications. “If this precedent is set that the president can act irrationally, it becomes a serious problem for future appointments,” she cautioned.
Listen to the full interview below:
VOC News
Photo: X/ @CrimeWatch_RSA
