Appointment of prosecutions boss headed for legal showdown

ADVOCATE Barnabas Xulu is forging ahead with his legal bid challenging the appointment of National Director of Public Prosecutions (NDPP).

In papers, Xulu said incoming NDPP Andy Mothibi was appointed unlawfully as he did not participate in a formal interview process. 

Xulu has also accused President Cyril Ramaphosa of lacking transparency in the appointment. 

Mothibi, who replaced Advocate Shamila Batohi, is expected to assume his new responsibilities from February 1.

Xulu and his law firm, B Xulu and Partners Incorporated, filed an urgent court application in December 2025 to prevent Ramaphosa from appointing  the new NDPP, saying the  interview process was flawed, biased, and unlawful. 

His objections were centered on candidate Advocate Hermione Cronje, whom he accused of “unlawful information peddling”. He alleged that the advisory panel failed to properly address his objections during her interview, while other candidates faced scrutiny for objections against them. Xulu also claimed Cronje received preferential treatment.

He later withdrew the urgent interdict but continued to seek a review of the advisory panel’s report. 

Following Ramaphosa’s appointment of Mothibi, Xulu filed a second urgent application to block the appointment, describing the process as “politically deliberate”.

In an interview this week,  Xulu said he would amend the court papers to have Mothibi’s ‘unlawful’ appointmentment set aside. 

Ramaphosa, Xulu argues, keeps referring to the interview process, even though Mothibi did not participate in the process. 

“Why is he referring to that thing when Mothibi was not part of the process?” 

“Because of the position they have taken, his appointment will be challenged. The appointment should be set aside. There was no need for the President to say he considered those papers (the panel report) and the process that was not transparent,” Xulu said. 

Asked to comment, Ramaphosa’s spokesperson, Vincent Magwenya, said the Presidency will respond to the court papers when Xulu decides to proceed with the court action he is considering. 

Justice Department Minister Mmamoloko Kubayi, through her spokesperson, Terrence Manase, said that such a court application will be rigorously opposed, as it will lack substance, rationale, and legal basis. 

Kubayi added that the appointment of the NDPP is a constitutional prerogative of the President, exercised in terms of Section 179 of the Constitution and the applicable provisions of the National Prosecuting Authority Act.

“The Minister views the continuous litigation by Advocate Xulu to be malicious and not in the interest of this country and fighting crime and corruption in this country,” she said. 

Political analyst Zakhele Ndlovu said Xulu’s legal actions are justified, adding that the fact that Mothibi did not participate in the interview process makes his appointment unlawful. 

Cape Times