A legal challenge to President Cyril Ramaphosa’s appointment of the country’s top prosecutor hinges on a landmark Constitutional Court ruling against his predecessor, Jacob Zuma, in a precedent that defines when presidential decisions can be struck down for an irrational process.
Law firm B Xulu and Partners Incorporated on Wednesday filed an amended application in the Gauteng High Court seeking to review and set aside the appointment of Adv. Jan Lekgoa Mothibi as national director of public prosecutions (NDPP), citing a precedent secured by the DA against Zuma in 2012.
The core of their argument is that the president’s actions were irrational and procedurally unfair, directly invoking the precedent set in Democratic Alliance v President of the Republic of South Africa–the case that nullified Zuma’s
appointment of Adv. Menzi Simelane as NDPP.
The application reveals that Ramaphosa appointed Mothibi on January 6, immediately after an advisory panel he had established reported that “none of the persons interviewed were suitable for appointment”.
Crucially, this decision was made while the firm’s initial court challenge to the panel’s allegedly flawed process was pending.
In a letter from the State Attorney dated January 6, which is annexed to the court papers, the Presidency informed the applicants: “Kindly be advised that the recommendation of the advisory panel was that none of the persons interviewed were suitable for appointment.
The President has now taken the decision to appoint Advocate Jan Lekgoa Mothibi as the next National Director of Public Prosecutions, and a person that was not amongst those interviewed by the panel.”
The firm argues this sequence of events triggers the stringent “rationality” test cemented in the DA v President judgment. In that ruling, the Constitutional Court held that the exercise of presidential power, even where broad discretion exists, must demonstrate a rational connection between the means employed and the end sought.
Quoting directly from the DA judgment, the founding affidavit states: “…ignoring prima facie indications of dishonesty is wholly inconsistent with the end sought to be achieved, namely the appointment of a national director who is sufficiently conscientious and has enough credibility to do this important job effectively. The means employed accordingly colour the entire decision, which falls to be set aside.”
Barnabas Xulu, in his supplementary affidavit, argues that president Ramaphosa’s actions fail this test on two fronts. First, by acting on the panel’s recommendation while aware it was legally challenged, and second, by appointing Mothibi outside the very “open and transparent” process the president himself had mandated for all other candidates.
“The president acted with undue haste in the circumstances,” Xulu deposes. “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 firm asserts the president should not have considered any output from a panel whose legality was before a court.
The second pillar of the attack is procedural fairness.
The Presidency’s October 2025 statement announced the panel would “call for nominations in an open and transparent manner, conduct shortlisting and interviews, ensure vetting of suitable candidates, and submit the names of three suitable candidates”. All shortlisted candidates, including former prosecutor Hermione Cronje, were subjected to this public
process.
Adv. Mothibi, however, was not interviewed, vetted, or publicly nominated. “There is no basis in law or otherwise for Advocate Mothibi to have been treated differently…” Xulu states.
“The president’s subsequent abandonment of that recruitment process is prejudicial to all those who subjected themselves to it.”
The relief sought is broad. The applicants demand the full record of both the advisory panel’s proceedings and the president’s decision to appoint Mothibi. They seek a declaration that the panel’s recommendation was unlawful, that its work be reviewed and set aside, and that Mothibi’s appointment itself be declared unlawful and set aside.
This case places president Ramaphosa’s accountability for delegated powers squarely under the judicial microscope.
“The president remains legally accountable for the actions of the advisory panel.
“He could not have made the decision to appoint; once there was a legal challenge to the decision he had taken through the advisory panel,” Xulu argues, adding that the president “bears vicarious accountability for everything that the advisory panel did on his authority”.
The application now awaits a hearing date and answering affidavits from the State.
It represents not only a challenge to a specific appointment but also a direct test of whether the rational and fair administrative standards enforced against Zuma will be
applied with equal vigour to President Ramaphosa’s exercise of the same constitutional power.
The outcome will have profound implications for the perceived independence of the NPA and the constraints on presidential discretion in the post-Zuma era.
