Court papers before the Pretoria High Court have alleged that the National Prosecuting Authority (NPA) holds “potentially incriminating evidence” against President Cyril Ramaphosa in relation to the Phala Phala scandal—raising fresh questions about his decision to appoint the country’s top prosecutor.
The court is hearing the matter on Tuesday, after the applicants filed their heads of argument on March 12.
The claim is contained in an urgent application challenging the appointment of Advocate Andy Mothibi as National Director of Public Prosecutions (NDPP), brought by the law firm B. Xulu and Partners.
In its heads of argument filed last week, the applicant states that the NPA is in possession of “potentially incriminating evidence against the President in his personal capacity pertaining to the Phala-Phala matter”.
Integrity of appointment process
The allegation forms part of a broader argument that Ramaphosa’s appointment of the NDPP may be tainted by a perceived conflict of interest.
While the papers do not seek to prove wrongdoing by the president in the Phala Phala matter, they argue that the existence of such evidence—held by the very institution whose head he appoints—makes the integrity of the appointment process critical.
“While not determinative of the rationality challenge, these concerns point out the necessity of a transparent and procedurally fair appointment process,” the court papers state.
The case challenges both the process followed by an advisory panel tasked with identifying suitable candidates and Ramaphosa’s final decision to appoint Mothibi.
At the centre of the application is the claim that the president deviated from his own process when making the appointment.
According to the papers, Mothibi was appointed “without being subjected to the same public participation, vetting, and interview process applied to other candidates”.
The applicant further argues that the advisory panel had concluded that none of the candidates it interviewed were suitable, yet the president proceeded to schedule an appointment outside that process.
The timing of the decision is also under scrutiny.
Political sensitive matters
The court papers state that Ramaphosa appointed Mothibi “while the application was pending and before filing answering papers”, despite an ongoing legal challenge to the selection process.
In addition to the Phala Phala issue, the applicant raises concerns about the NPA’s broader performance in politically sensitive matters, including its handling of state capture cases.
The papers refer to “the NPA’s failure to act on the recommendations of the state capture commission regarding the prosecution of members of his cabinet and other leaders of his political party”.
The legal challenge is grounded in the constitutional principle of legality, which requires that all exercises of public power be rational and procedurally fair.
The applicant argues that the process leading to Mothibi’s appointment was flawed, including allegations of inconsistent treatment of candidates and failure to properly consider objections submitted during public participation.
The case has taken on added significance due to a procedural decision by the respondents.
In a replying affidavit, the applicant says that both the president and the chairperson of the advisory panel chose not to file answering affidavits and instead only raise points of law.
As a result, the affidavit argues: “All factual allegations set out in the applicant’s founding affidavit stand undisputed and admitted.”
President’s conduct questioned
The applicant contends that this leaves the court to determine the matter on the basis that the factual claims about the process—including alleged irregularities—are not in dispute.
The papers also argue that the president’s conduct in relying on the advisory panel’s recommendations while defending a legal challenge to that same process is contradictory.
They say “he cannot, on the one hand, defend the panel’s process and, on the other hand, rely on the fruits of that very process to appoint a candidate.”
The Presidency is opposing the application.
The case raises far-reaching questions about the independence of the NPA, the limits of presidential power, and whether the appointment of the country’s chief prosecutor can withstand scrutiny when the head of state may have a personal stake in matters under investigation.
At its core, the application places the Phala Phala scandal back at the centre of South Africa’s criminal justice system—this time not as a standalone controversy, but as a factor in the appointment of the official ultimately responsible for deciding whether prosecutions proceed.
