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ADRIAN CARL MOPP Eighth Respondent
MENZI SIMELANE Ninth Respondent
JAN LEKGOA MOTHIBI Tenth Respondent
JUDGMENT
LABUSCHAGNE J:
[1] The applicant is a firm of attorneys which brings an urgent application seeking
the following substantive relief:
“2. Declaring the recommendation of the second respondent to the first
respondent on the appointment of the National Director of Public
Prosecutions as unlawful.
3. Reviewing and setting aside the decision and/or recommendation
of the second respondent on the appointment of the National
Director of Public Prosecutions.
4. Declaring the appointment of the tenth respondent as the National
Director of Public Prosecutions as unlawful.
5. Reviewing and setting aside the decision of the first respondent
appointing the tenth respondent as the National Director of Public
Prosecutions.”
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[2] The First Respondent is the President of the Republic of South Africa (the
“President”). The second respondent is an advisory panel 9the”Advisory
Panel”) appointed by the President to screen candidates and to recommend
suitable candidates for appointment as National Director of Public
Prosecutions (NDPP) .The third respondent is the Minister of Justice and
Constitutional Development, cited as a respondent in her capacity only as
Chairperson of the Advisory Panel appointed by the President to assist in the
appointment of the National Director of Public Prosecutions.
[3] The fourth respondent was a candidate for appointment to the position of
NDPP. The applicant submitted a 99-page written submission objecting to the
appointment of the fourth respondent.
[4] The fifth, sixth, seventh, eighth and ninth respondents were also candidates
for appointment who were considered by the Advisory Panel.
[5] The tenth respondent was appointed as the National Director of Public
Prosecutions on 6 January 2026.
CHRONOLOGY
[6] On 07 October 2025 the President announced the appointment of an
independent advisory panel, established by him to conduct a selection
process for a new National Director of Public Prosecutions, as the then
NDPP’s terms of office was expiring at the end of January 2026. As part of
the public participation process the applicant submitted an objection on 04
December 2025 to the inclusion of the fourth respondent as a candidate.
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[7] The applicant’s grievance as far as the process conducted before the Advisory
Panel is concerned is related to a perceived bias in favour of the fourth
respondent. So, for example, she was not provided with the applicant’s
grievance against her so that she could defend h erself. The nub of the
application, as far as the first decision is concerned (the recommendation of
the Advisory Panel), is the fact that the applicant’s grievance against the fourth
respondent was not properly considered.
[8] Part A of the application that was subsequently brought is aimed at seeking a
full record of the interview process so that the applicant could supplement its
prima facie grounds of review.
[9] On 11 December 2025 the fourth respondent was interviewed. It emerged
during that interview that she had not been provided with the applicant’s
objection to her candidacy. The fourth respondent was allowed an opportunity
to submit written responses to the objection. However, before this could take
place the Advisory Panel had wrapped up its proceedings.
[10] On 12 December 2025 the Department of Justice and Constitutional
Development issued a statement on behalf of the Advisory Panel, announcing
the conclusion of the interview process, which statement concluded the
following:
“Following the completion of the process, the Panel will submit its report
to the President on Friday, 12 December for his consideration.”
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[11] In correspondence emanating from the applicant, the Advisory Panel was
advised that its proceedings were irregular and demonstrated a bias in favour
of the candidacy of the fourth respondent.
[12] At the end of December 2025, the applicant brought an urgent application to
restrain the President from taking any further steps in appointing an NDPP
from the list of candidates interviewed by the Advisory Panel pending
finalisation of a review brought by the applicants to set aside the report of the
Advisory Panel.
[13] On 31 December 2025 the Office of the State Attorney filed a notice to oppose
on behalf of the President, the Advisory Panel and the Minister of Justice and
Constitutional Development.
[14] On 06 January 2026 the applicant received a letter from the State Attorney
containing a request for the withdrawal of the urgent application. The letter
contains the following:
“[2] Kindly be advised that the recommendation of the Advisory Panel
was that none of the persons interviewed were suitable for
appointment.
[3] The President has now taken the decision to appoint Adv Jan
Lekgoa Mothibi as the next National Director of Public
Prosecutions, and a person that was not amongst those
interviewed by the Panel.
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[4] In light of the above, it is our respectful view that the concerns
raised in your application no longer present a li ve 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.”
[15] The applicant, nevertheless, impugns the recommendation by the Advisory
Panel on the grounds that it was an irregular recommendation, as the
applicant’s objection to the fourth respondent had not properly been dealt with.
[16] That having been said, the applicant also seeks to set aside the appointment
by the President of Adv Mothibi as NDPP on the grounds of procedural
irregularity, based on what transpired before the Advisory Panel.
[17] The appointment of Adv Mothibi is challenged on two grounds:
17.1 The appointment was made after the President accepted and/or relied
upon the recommendations of the Advisory Panel that were already
the subject of a legal challenge wherein the President was cited as
first respondent and had joined issue by filing a notice to oppose.
17.2 Adv M othibi was appointed without being subjected to the same
application process, public participation and other criteria as the other
candidates who had applied for the same position. This was seen as
deferential treatment of Adv Mothibi in a process for the same
appointment that had previously been submitted to proceedings
before the Advisory Panel. The applicant does not impugn the fitness
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of Adv Mothibi for the position to which he was appointed. It is a
procedural challenge based on what preceded his appointment.
[18] The media statement of the Presidency of 6 January 2026 reads in part as
follows:
“… The panel selected six candidates for interviews out of 32 applicants.
The Panel concluded its process and submitted its report to the
President on the 12th of December 2025. In its report, the panel advised
the President that none of the interviewed candidates were suitable for
the role of NDPP.
Accordingly, President Ramaphosa has in terms of section 179(1)(a) of
the Constitution of the Republic of South Africa, 1996, read with section
10 of the NPA Act, 1998 (Act 32 of 1998), decided to appoint Adv Jan
Lekgoa Mothibi, with effect from 1 February 2026 as the National
Director of Public Prosecutions (NDPP).”
OPPOSITION BY MEANS OF RULE 6(5)(d)(iii)
[19] In response to this application t he President filed a notice in terms of rule
6(5)(d)(iii) via the State Attorney, giving notice that he intends raising the
following points of law:
“THE COURT DOES NOT HAVE JURISDICTION.
First point of law – no proper cause for review
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4. The applicant has not set out the provisions in section 179(1)(a),
read with section 84 of the Constitution, which regulates the legal
procedure for the appointment of the National Director of Public
Prosecutions, on which the contention for irregularity, and thus the
illegality, is based.
5. Accordingly, the applicant has failed to engagr the jurisdiction of the
above Honourable Court by failing to disclose a proper cause of
action to sustain a review of the President’s decision to appoint the
tenth respondent as the National Director of Public Prosecutions on
the grounds of legality.
6. Therefore the above Honourable Court does not have review
jurisdiction over the application.
Second point of law – decisions are not reviewable
7. The applicant has cited:
7.1 As the second respondent, the ‘Advisory Panel for the
selection of National Director of Public Prosecutions’
appointed by the President to make recommendations to the
President in respect of the appointment of the National
Director of Public Prosecutions; and
7.2 As the third respondent, MmamolokoTryphosa Kubayi, in her
capacity as the Chairperson of the Advisory Panel and not in
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her capacity as the Minister of Justice and Constitutional
Development, as she was not Chairing the Advisory Panel in
a ministerial capacity, but a mere nominee of the President for
the role of Chairperson.
8. Both the second and third respondents as cited are not statutory or
public bodies. In making their recommendations to the President
therefore the did not perform any administrative or public function
within the principle of legality.
9. The recommendations of the second respondent to the President
do not constitute a decision or conduct until translated into an overt
act by the President.
10. Accordingly the recommendations or decisions of the second
and/or third respondents are not reviewable on the principle of
legality or at all.
11. In the premises the Honourable Court does not have jurisdiction
over the application.
Third point of law - Rule 53 is not applicable
12. Rule 53 regulates the review of decisions of proceedings of any
inferior court and/or tribunal, board or officer performing judicial,
quasi-judicial or administrative functions.
13. The rule does not apply to this application because:
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13.1 In appointing the tenth respondent as the National Director of
Public Prosecutions section 179(1)(a), read with section 84 of
the Constitution, the President does not preside over, nor is
he a member of any of the identified institutions or offices
referred to in rule 53 or any like institution;
13.2 The President is not an officer as envisaged in rule 53 or the
holder of any office akin thereto;
13.3 The conduct of appointing the National Director of Public
Prosecutions does not amount to the performance of any
judicial, quasi -judicial, administrative or other function
envisaged in rule 53.
14. Accordingly rule 53 does not apply to this application.
THE RECORD IS NOT COMPELLABLE
Fourth point of law – Record not compellable
15. Rule 53 does not apply to this application and it was impermissible
for the applicant to invoke the rule in the application.
16. The applicant is therefore not entitled to the record under rule 53.
17. The applicant is similarly not entitled to a record in terms of section
173 of the Constitution, as a procedural step predicated on rule
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6(12) urgency and the procedure under rule 53(1) and (4) of the
Uniform Rules.
18. Accordingly the President is not obliged to produce the record, nor
is the record compellable.”
[20] Counsel representing the President, Adv Chabedi SC, explained that the rule
6(5)(d)(iii) notice that was filed did not constitute an election not to file an
answering affidavit, but, as it is a proper means of testing the reviewability of
the decision in question, the first respondent is not yet called up on to file an
answering affidavit- the right to file which has been reserved.
[21] The applicant, by contrast, contends that the President has made an election
not to file an answering affidavit and is bound by that decision. This is not an
issue to decide now. At this stage, I view the notice filed by the President as
a challenge to the reviewability of the decision. The implication is that the
factual allegations in the Founding affidavit stand as established for purposes
of this leg of the proceedings.
[22] In Famous Idea 4 Tradin g (Pty)(Ltd) t/a Dely Road Courier Pharmacy v
Government Employees Medical Scheme [2026] ZACC 5 the Constitutional
Court ruled on such an in limine challenge to the court’s review jurisdiction .
The following was said:
“[42] A rule 6(5)(d)(iii) notice is a procedural mechanism available to
a respondent to resist an application that is devoid of legal
grounds. The respondent may raise the legal point in
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limine (preliminary legal objection) at the outset. The court does
not have to consider the merits. It will consider the allegations
in the founding affidavit as established facts . This is a potent
procedural right as it enables the early disposal of applications
without requiring the respondent to file an answering affidavit. It
is also a cost -effective procedure. Serving a rule 6(5)(d)(iii)
notice before the record has been prod uced in rule 53
proceedings is competent and was correctly invoked in thi s
matter.”
[23] It suffices to state that the justiciability of a decision in review proceedings may
be raised as a threshold position, and until that has been determined, a review
record is not compellable.
LOCUS STANDI IN A LEGALITY REVIEW
[24] In review proceedings locus standi is available to the right party at the right
time for the right remedy . It is a function of timing and identity based on the
impact of the decision under review. Under the common law this issue was
dealt with under the rubric of ripeness or prematurity . Under PAJA the issue
is dealt with in that part of the d efinition of administrative action referring to
the adverse effect of a decision. This is summarised in Giant Concerts CC v
Rinaldo Investments (Pty) Ltd 2012 (JDR) 2298 (CC) (see below).
[25] In a PAJA review, the applicant would have to show that the decision
impugned “adversely affects the rights of any person and which has a direct
external legal effect” (part of the definition of ‘administrative action’).
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[26] The Constitutional Court, with reference to this principle stated the following
in Giant Concerts at paragraph [30]:
“[30] The Supreme Court of Appeal has rightly suggested that
‘adversely affects’ in the definition of administrative action was
probably intended to convey that administrative action is action
that has the capacity to affect legal rights, and that impacts
directly and immediately on individuals. The effect of this is that
Giant, as an own-interest litigant, had to show that the decisions
it seeks to attack had the capacity to affect its own legal rights or
its interests.”
[27] Prior to the commencement of these proceedings, the applicant and the
respondents were requested to address the court on the issue of standing,
with reference to the judgment in Malao Inc v Minister of Transport 2022
JDR 0973. In that matter firm s of attorneys, who litigate RAF matters in the
High Court on behalf of their clients , challenged the legality the Minister of
Transport’s decision to appoint a new the CEO. They failed for la ck of locus
standi. Leave to appeal was pursued but the SCA and the Constitutional Court
refused leave to appeal.
[28] In determining a litigant’s standing, a court must, as a matter of logic, assume
that the challenge the litigant seeks to bring is justified. As Hoexter explains:
“The issue of standing is divorced from the substance of the case. It is
therefore a question to be decided in limine (at the outset), before the
merits are considered.” (See Giant Concerts, paragraph [32]).
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[29] The separation of merits from the question of standing has two implications
for an own -interest litigant such as the applicant in these proceedings. This
was dealt with by the Constitutional Court in Giant Concerts at paragraph [33]
where it states:
“[33] First, it signals that the nature of the interest that confers
standing on the own-interest litigant is insulated from the merits
of the challenge he or she seeks to bring. An own -interest
litigant does not acquire standing from the invalidity of the
challenged decision or law, but from the effect it will have on his
or her interests or potential interests. He or she has standing to
bring the challenge even if the decision or law is in fact valid. But
the interests that confer standing to bring the challenge, and the
impact the decision or law has on them, must be demonstrated.
[34] Second, it means that an own -interest litigant may be denied
standing even though the result could be that an unlawful
decision stands. This is not illogical. As the Supreme Court of
Appeal pointed out, standing determines solely whether
this particular litigant is entitled to mount the challenge: a
successful challenge to a public decision can be brought only if
‘the right remedy is sought by the right person in the
right proceedings’. To this observation one must add that the
interests of justice und er the Constitution may require courts to
be hesitant to dispose of cases on standing alone where broader
concerns of accountability and responsiveness may require
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investigation and determination of the merits. By corollary, there
may be cases where the interests of justice or the public interest
might compel a court to scrutinise action even if the applicant’s
standing is questionable. When the public interest cri es out for
relief, an applicant should not fail merely for acting in his or her
own.
[30] This excursion into the issue of locus standi arises from the fact that the
applicant’s purpose for participating in the proceedings of the Advisory Panel
was to make submissions aimed at precluding the fourth respondent from
being appointed National Director of Public Prosecutions.
[31] The chronology indicates that this objective was achieved in that the
recommendation of the Advisory Panel to the President, conveyed to the
President on 12 December 2025, was to the effect that none of the candidates
were suitable for appointment.
[32] Flowing from this, the question arises whether the applicant has locus
standi to challenge a decision which has not adversely affected its rights. The
applicant contends that its objections should have been dealt with by the
Advisory Panel and should have been fully considered. This amounts to a
proposition that the applicant wis hed the fourth respondent to be denied an
appointment on the grounds set out in its objection. Where the result sought
to be achieved was in fact achieved, it is apparent that the applicant cannot
demonstrate that the decision of the Advisory Panel ha s adversely affected
the applicant’s own interests or had the capacity to do so. The only basis on
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which the applicant could assert its locus standi is that it was a participant in
the proceedings before the Advisory Panel and as an objector should
therefore have the right to be heard. That in principle is correct. However, the
decision sought to be impugned has no adverse effect as far as the applicant
is concerned. If the decision has no impact on the applicant, the applicant does
not have locus standi.
[33] It follows that I am not satisfied that the applicant has locus standi to
challenge the recommendation of the Advisory Panel. That should be the end
of the matter. This court’s review jurisdiction is therefore not engaged.
[34] It would however be remiss not to go further , on the basis that I may have
erred in such a finding . As remarked in Giant Concerts supra, other
considerations should also be dealt with. I am mindful thereof that broader
considerations related to the interests of justice require consideration of the
other grounds of objection to the proceedings and, in adherence to the
warning sounded by the Constitutional Court supra, I will deal with the further
contentions pertaining to the merits of the review.
ARE THE TWO DECISIONS LINKED?
[35] The applicant asserts a link between the two decisions that has a domino
effect on the appointment of the tenth respondent as NDPP (i.e. the second
decision). Its interest in the second decision arises from the illegality of the
first. Where one decision is being challenged in review proceedings, and the
validity of that decision is the substratum for a subsequent decision, the so-
called domino effect comes into play. If the first decision is struck down for
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lack of legality, the second decision falls as a result (see Seale v Van Rooyen
NO 2008 (4) SA 43 SCA).
[36] By contrast, if the two decisions are not so linked, the applicant’ s interest in
the second decision cannot be established.
[37] In this instance the nature of the first decision impugned needs to be
considered. It is a recommendation to the President by a body that was
created to assist the President in making a decision. The Advisory Panel has
no status in terms of the Constitution and is not a public body that is exercising
public power. The nature of its decision is merely a recommendation. Whilst
it is correct that a recommendation (in the sense of a proposed decision) would
fall within the ambit of a “decision” in terms of PAJA, this is not necessarily so
in respect of a legality challenge.
[38] A recommendation by its nature precedes a decision. In the context of an
executive action by the President , a recommendation aimed at such an
executive decision, would not stand as a separate decision, as it does in PAJA,
as it is merely a precursor to the executive action itself. As far as the President
is concerned his decisions must be in writing. The rationality of the
recommendation may very well play a role in determining the rationality of the
executive action. However, as a step on the way to a decision, it does not on
its own constitute a decision for purposes of a review in terms of legality. This
is what distinguishes it from a review in terms of PAJA. My primary finding is
that the first decision (the recommendation) is not a separate decision capable
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of sustaining a legality review. Prayer two and three of the Notice o f Motion
must therefore fail for this reason as well.
[39] Having said the aforesaid, I am however mindful thereof that an advisory body
such as the Advisory Panel in this matter may be treated under the law as
having acquired the power to exercise public power due to the role it plays in
the decision of the President. In principle, if there is procedural irrationality that
taints the recommendation, that may taint the President’s decision.
[40] In AAA Investments (Pty)(Ltd) v Microfinance Regulatory Council
2006(11) BCLR 1255 (CC) the Constitutional Court established the principle
that a body exercising a public function in terms of national legislation acts
subject to the Constitution:
“[41] Our Constitution does not do this, however, by an expanded
notion of the concept of government or the executive or by
relying on concepts of agency or instrumentality. It does so by a
relatively broad definition of an organ of state. This definition
renders the legality principle and the Bill of Rights applicable to
a wider category of function than the Charter does in Canada.
An organ of state is, amongst other things, an entity that
performs a public function in terms of national legislation. If the
Council performs its functions in terms of national legislation,
and these functions are public in character, it is subject to the
legality principle and the privacy protection. In our constitutional
structure, the Council or any other entity does not have to be part
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of government or the government itself to be bound by th e
Constitution as a whole.' The way is now open to an investigation
of the nature of the Council and the nature of the function it
performs.”
[41] I therefor e err on the side of caution in nevertheless , according the
recommendation of the Advisory Panel, the status of a step in the process
leading to the decision of the President.
[42] There is however a factual issue that arises. There is a factual break between
the first and the second decision. The argument of the applicant is that, once
the Advisory Panel had made no re commendation for appointment, the
President had three options. He could close the proceedings of the Advisory
Panel and determine a new means of coming to a decision. Or he could extend
the term of the incumbent NDPP. Or he should have called for new
nominations to be screened by the Advisory panel.
[43] These are speculative means to an end. These arguments lose sight of the
fact that the President had expressly stated in his press statement that the
panel had concluded their proceedings. This was also stated in
correspondence from the State Att orney to the applicant on 6 January 2026.
The President’s attempt to obtain assistance from the panel came to nought.
[44] Having appointed an advisory panel once, was he obliged to appoint another
to advise on appointing the tenth respondent? The applicant thinks so. That
position flows from a perceived need for consistency under the circumstances.
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PROCEDURAL FAIRNESS IS NOT REQUIRED IN APPOINTING THE
NDPP
[45] However, the President is empowered by the Constitution to get on with the
business of governing the state without undue procedural restraints.
[46] In Masetla v President of the Republic of South Africa 2008 (1) SA
566(CC) Moseneke DCJ stated as follows:
“[77] It is clear that the Constitution and the legislative scheme give
the President a special power to appoint and that it will be only
reviewable on narrow grounds and constitutes executive action
and not administrative action. The power to dismiss - being a
corollary of the power to appoint - is similarly executive action
that does not constitute administrative action, particularly in this
special category of appointments. It would not be appropriate to
constrain executive power to requirements of proce dural
fairness, which is a cardinal feature in reviewing administrative
action. These powers to appoint and to dismiss are conferred
specially upon the President for the effective business of
government and, in this particular case, for the effective pursu it
of national security. In Premier, Mpumalanga, this Court has
had occasion to express itself on whether to impose a
requirement of procedural fairness in the following terms: ‘In
determining what constitutes procedural fairness in a given case,
a court should be slow to impose obligations upon government
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which will inhibit its ability to implement policy effectively (a
principle well recognised under our common law and that of
other countries) . As a young democracy facing immense
challenges of transformation, we cannot deny the importance of
the need to ensure the ability of the Executive to act efficiently
and promptly’.
[78] This does not, however, mean that there are no constitutional
constraints on the exercise of executive authority. The authority
conferred must be exercised lawfully, rationally and in a manner
consistent with the Constitution . Procedural fairness is not a
requirement.”
[47] The applicant is confusing consistency with rationality. It is arguably unfair to
appoint the tenth respondent without him being screened by an advisory
panel. The President was however not constrained to again a use an advisory
panel to appoint the 10th respondent. Time was running out as the incumbent
would vacate her position at the end of January. The fact that the President
appointed a person whose fitness is not being questioned speaks of a rational
decision.
[48] Appointing the 10 th respondent without a public screening process is not a
deviation from a publicly announced procedure to screen candidates. That
process had been concluded and had failed to ide ntify a suitable candidate .
The President was acting in a procedurally rational manner in changing tack.
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[49] The applicant has therefore not established a basis for a review of the
appointment of the tenth respondent.
CONCLUSION
[50] Having considered the arguments of the applicant I conclude that:
50.1 The applicant lacks locus standi.
50.2 The first impugned decision is a recommendation only and cannot
sustain a legality review as a separate decision.
50.3 The second decision is a fresh decision after a failed advisory
process, based on a power to appoint , untrammelled by the
requirements of fair process.
50.4 The application must therefore fail.
50.5 However, in respect of costs, the applicant was seeking to enforce
constitutional rights, albeit unsuccessfully, in a constitutional matter.
The Biowatch principle will apply. Each party will pay its own costs.
[51] In the premises I make the following order:
1. The application is dismissed.