The state attorney, representing President Cyril Ramaphosa, has argued that a high-stakes legal bid by law firm B Xulu & Partners to halt the appointment of a new national director of public prosecutions (NDPP) due to an objection against the option of Advocate Hermione Cronje is now pointless.
In a letter seen by this publication, the state attorney’s office contends that Ramaphosa’s decision on Tuesday to appoint Andy Mothibi—a candidate not reviewed by an advisory panel—has rendered the application moot.
Barnabas Xulu’s law firm had mounted a legal challenge against Ramaphosa’s process for appointing the country’s top prosecutor, and now the state attorney argues that the president’s final decision has overtaken the case.
Law firm told to withdraw application
In a formal letter signed by Carol Mabena, the state has called on B Xulu & Partners Inc. to withdraw its urgent application, which sought to interdict Ramaphosa from finalising an appointment based on recommendations from an independent advisory panel.
The case was set for hearing on January 20.
The state’s mootness claim hinges on the revelation that the panel found all interviewed candidates unsuitable and that Ramaphosa subsequently selected Mothibi, who was not among those interviewed.
This is stated in the letter dated January 6.
“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 Adv. Jan Lekgoa ‘Andy’ Mothibi as the next national director of public prosecutions, a person that was not amongst those interviewed by the panel.”
“This development,” the letter argues, “makes the legal challenge irrelevant.”
It further contends that “the concerns raised in your application no longer present a live controversy between the parties, requiring the intervention of the court, and that the relief sought by your client in the notice of motion in toto has become moot”.
Plan to seek costs order against applicant
The state attorney has requested the withdrawal of the application in the interest of judicial economy.
Should Xulu refuse, the state intends to file answering affidavits by January 12, opposing the relief and seeking a costs order against the applicant for any expenses incurred after the date of the mootness declaration.
The legal maneuver places the onus on Xulu’s firm to either abandon its challenge or persuade the court that a live issue persists, despite Ramaphosa’s appointment of Mothibi outside the contested panel process.
The advisory panel, chaired by Justice Minister Mmamoloko Kubayi, interviewed six candidates on December 10 and 11, including Cronje, a former head of the investigative directorate.
Following their assessment, the panel submitted its report to Ramaphosa on December 12.
According to Ramaphosa, the report advised that none of the interviewed candidates were suitable for the role.
