Advocate Mothibi to start NDPP duties despite legal battle

Outgoing Special Investigating Unit (SIU) head Advocate Andy Mothibi will be served with court papers challenging his appointment as the National Director of Public Prosecutions (NDPP) on Monday, following his appointment by President Cyril Ramaphosa.

Barnabas Xulu & Partners Inc. on Saturday indicated that it would serve Mothibi with its court challenge on Monday when he officially assumes the office of the NDPP.

Xulu said in his response to questions: “Correct, he will only be served on Monday in his office at the NPA (National Prosecuting Authority).”

The Cape Town-based attorney wants the Gauteng High Court, Pretoria, to declare that the recommendation to Ramaphosa of the advisory panel chaired by Justice and Constitutional Development Minister Mmamoloko Kubayi for the selection of NDPP to appoint Mothibi is unlawful.

In addition, Xulu wants the court to review and set aside the recommendation of the panel on the appointment of the NDPP, and that Mothibi’s appointment is unlawful. The law firm also wants the appointment of Mothibi to be reviewed and set aside.

Mothibi, through SIU spokesperson Kaizer Kganyago, said: “Mothibi has not been served with any papers related to the said case. He will report for duty on Monday.”

In its court papers, Barnabas Xulu & Partners Inc. stated that the firm does not dispute Ramaphosa’s powers to appoint the NDPP in terms of the Constitution or impugn Mothibi’s suitability for the position.

“As per the founding affidavit, we persist with the allegation that the entire process of appointing the NDPP that culminated in the appointment of Advocate Mothibi is unlawful,” reads the law firm’s papers filed on Thursday this week.

Barnabas Xulu & Partners Inc. added that Mothibi was appointed in a manner that did not subject him to the same process and criteria as other candidates who had been rendered ineligible or unsuitable by the advisory panel.

The firm said Ramaphosa’s differential treatment of Mothibi in a process for the same appointment was unlawful.

“The procedural unfairness in the appointment of Advocate Mothibi is exposed by what appears in the media statement of the Presidency and the letter of the State Attorney of January 6, 2026, which both in essence state that the president accepted the recommendation of the advisory panel not to appoint any of the interviewed candidates and the president subsequently appointed Advocate Mothibi,” explained Barnabas Xulu & Partners Inc.

The firm continued: “Put differently, the president acted on the recommendations of the advisory panel not to appoint the interviewed candidates and appointed a person not subjected to any equivalent process.”

Ramaphosa is also accused of acting in undue haste in the circumstances, given that he had been the one who ostensibly delegated his powers in terms of the Constitution to the advisory panel.

“With the knowledge he had of the court challenge that raised legality issues on his selection process, it was incumbent on the president to act with caution because the challenge to the advisory panel was actually a challenge to the president himself, as the advisory panel was his proxy.

“The president could have appointed an acting NDPP while defending the legal challenge against the advisory panel in court,” Barnabas Xulu & Partners Inc. further stated.

loyiso.sidimba@inl.co.za