‘Surprise appointee’ Andy Mothibi officially takes reins as South Africa’s new Director of Public Prosecutions

After his official swearing in, South African advocate Jan Lekgoa (Andy) Mothibi began his new role as National Director of Public Prosecutions (NDPP) this week among a mixture of optimism and criticism from the legal community and policy observers, alongside a potential court challenge to the validity of his elevation.

While Mothibi, who previously served as Head of the Special Investigating Unit (SIU) appears to generally be highly regarded, the controversy stems from his surprise appointment, announced by South African President Cyril Ramaphosa on 6 January.

Mothibi was not among the six shortlisted candidates who were interviewed by an advisory panel chaired by Justice and Constitutional Development minister Mmamoloko Kubayi for the role of leading the National Prosecuting Authority (NPA).

After the advisory panel decided none of the six shortlisted candidates interviewed late last year (broadcast live on television) were suitable for one of the most important jobs in South Africa’s justice system, Ramaphosa named Mothibi as the successor to Shamila Batohi, who served a seven-year tenure as NDPP.

Batohi, who returned to South Africa from the International Criminal Court in The Hague in February 2019 to take up leadership of the prosecutorial authority, has served the longest term of any NDPP in the post-Apartheid era.

Speaking during her last day in office on Friday, Batohi said the body she inherited in 2019 was a broken institution, weakened by the era of state capture, and facing declining public trust and operational challenges, but today's NPA was now more independent, more credible, more resilient and more future ready.

She urged Mothibi, as her successor, to fight for more institutional independence, and for competitive salaries to attract high profile advocates.

Controversially, Mothibi did not undergo the same public scrutiny or vetting process as the six shortlistees, which included former NDPP Menzi Simelane (whose 2010 appointment by Jacob Zuma was later struck down by the Constitutional Court).

On 6 January, spokesperson Vincent Magwenya said it was President Ramaphosa’s prerogative, empowered by the Constitution, to appoint a suitable head of the NPA.

“I’ve appointed a known figure, a person who is in the criminal justice system, who has distinguished himself and who has demonstrated his ability,” said the President. “I’m hoping that everybody will accept this for what it is. And of course, in future, we would want even the law or the Constitution to allow a more open process. We don’t have it now, and it was instituted at my volition, and when it didn’t yield the results that I expected, I had to rely on what the Constitution empowers me to do.”

The critical role of the NDPP in fighting corruption in the country cannot be overstated, said Lebogang Ramafoko, executive director at Corruption Watch, following Mothibi’s surprise appointment, noting the role is at the forefront of seeking accountability in South Africa. “It is imperative that the appointed candidate undertakes this task without fear or favour, is committed to the highest ethical standards, and is well placed to collaborate with law enforcement stakeholders.”

Corruption Watch noted that while Mothibi had not been one of the final six shortlisted candidates for the role of NDPP, he would bring a wealth of knowledge and experience, having been at SIU’s helm since May 2016. However, it would have been preferable for him to be subjected to the same interview process as the others.

Mothibi’s elevation to NDPP has also been welcomed and supported by Public Interest SA, the Public Servants Association (PSA), and others.

Public Interest SA praised his “wealth of institutional experience and a demonstrable record of ethical leadership”, while noting Mothibi’s SIU tenure “has been marked by a widely acknowledged organisational turnaround, characterised by improved performance, strengthened systems and processes, and sound people management”. However, they were troubled by the manner of Mothibi’s appointment.

“Notwithstanding Mothibi’s proven competence and integrity, his appointment has raised legitimate public concern … If the President had intended from the outset to exercise a direct appointment, what was the purpose of conducting an extensive public interview process that ultimately had no bearing on the final outcome?”

When processes appear to be disregarded or rendered inconsequential, said Public Interest SA, institutional legitimacy is weakened, and the public is left with the perception that transparency has become ceremonial rather than meaningful.

As he took office this week, Mothibi has also reportedly been added as a further respondent to a legal challenge being brought by Cape Town law firm B Xulu and Partners challenging the entire process to appoint South Africa’s new NDPP.