A legal battle is set to intensify over President Cyril Ramaphosa’s decision to appoint Advocate Andy Mothibi as the new head of the National Prosecuting Authority (NPA), as senior advocate Barnabas Xulu prepares to amend court papers to challenge the move.
Xulu, who previously sought to interdict the appointment of a National Director of Public Prosecutions (NDPP), says his next application will compel Mothibi to respond to questions surrounding what he describes as a controversial and unlawful appointment process.
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Mothibi, who replaces Advocate Shamila Batohi, is due to formally take up his duties on 1 February. However, Xulu insists the appointment should be set aside, arguing that it was neither transparent nor compliant with constitutional requirements.
Legal challenge focuses on NDPP appointment process
In court papers, Xulu maintains that Mothibi’s appointment is unlawful because he did not participate in a formal interview process. He also accuses President Ramaphosa of lacking transparency in how the decision was reached.
Xulu and his firm, B Xulu and Partners Incorporated, initially filed an urgent application in December 2025 to prevent the appointment. That application centred on allegations that the interview process for NDPP candidates was flawed, biased and unlawful.
His objections were largely focused on candidate Advocate Hermione Cronje, whom he accused of “unlawful information peddling”.
Xulu alleged that the advisory panel failed to adequately deal with his objections during her interview, while other candidates were rigorously questioned on objections raised against them. He further claimed that Cronje was afforded preferential treatment.
Although Xulu later withdrew the urgent interdict, he continued to pursue a review of the advisory panel’s report.
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Fresh court bid targets Ramaphosa’s decision to appoint Andy Mothibi
Following Ramaphosa’s confirmation of Mothibi’s appointment, Xulu launched a second urgent application, describing the process as “politically deliberate”. Speaking on Tuesday, he said he would now amend the papers to directly challenge the appointment.
He argued that Ramaphosa repeatedly relied on an interview process that Mothibi was never part of.
“He (Ramaphosa) kept referring to that tainted process as if it was lawful. Why is he referring to that thing when Mothibi was not part of the process?” Xulu asked.
“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,” he said.
Presidential spokesperson Vincent Magwenya said the Presidency would respond once Xulu proceeds with the court action he is considering.
Government, DA and analysts weigh in
Justice Department Minister Mmamoloko Kubayi, through spokesperson Terrence Manase, said any such application would be “rigorously opposed” as it would lack substance, rationale and legal basis.
Kubayi stressed that the appointment of an NDPP is a constitutional prerogative of the President under Section 179 of the Constitution and 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.
The appointment has also raised concerns that it could be a strategic move to shield Ramaphosa’s associate and alleged relative, Hangwani Maumela, from prosecution linked to the R2 billion Tembisa Hospital tender scandal.
Meanwhile, the Democratic Alliance has filed an application under the Promotion of Access to Information Act (PAIA) to force the Presidency to release the advisory panel’s report.
SIU response and political analysis
Special Investigating Unit (SIU) spokesperson Kaizer Kganyago said Mothibi would not comment on his appointment, but emphasised that SIU operations would not be disrupted.
Kganyago said work under acting head Leonard Lekgetho would continue without interruption, including the probe into the Tembisa Hospital matter. He added that Mothibi had instructed investigators to conclude that investigation in 2026.
“It is worth highlighting that the SIU made the decision to share the interim report with the public and has already acted on some of the outcomes that have been determined,” Kganyago said.
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Political analyst Zakhele Ndlovu said Xulu’s actions were justified, arguing that Mothibi’s failure to participate in the interview process rendered the appointment unlawful.
Politician and lawyer Zwelethu “Mighty” Madasa echoed these concerns, saying that while he had not seen the court papers, the appointment was clearly not “objective and fair”.
He added that other shortlisted candidates were sidelined without explanation, while Mothibi was not subjected to the same process.
“Lastly, the resources expended in the recruitment process were not effectively and economically used as stipulated in Section 195 (b) of the Constitution,” Madasa said.
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