Judge Chris Nicholson's "political meddling" inferences against former president Thabo Mbeki were not what cost him his position - Mbeki's "sometimes questionable leadership" was.

So argue lawyers for ANC President Jacob Zuma, who are fighting Mbeki's efforts to have Judge Nicholson's adverse comments about him erased by South Africa's highest court.

In a Constitutional Court affidavit supported by Zuma, attorney Michael Hulley described Mbeki's claim that the judge's ruling was solely responsible for his ousting as an "obvious strategic overstatement" and "not correct".

According to Hulley, Mbeki had "in the past, by the manner in which he dealt with matters of policy and those whom he discerned as threats to his position, engendered strong feelings".

Hulley also suggested that Mbeki's decision to stand for a third term as ANC president at Polokwane might have factored into the "strong feelings" that led to his being recalled.

"In short, Mr Zuma acknowledges that (Mbeki) has in many respects done excellent things as the president. He has, however, like all persons, also done things which are questionable, the cumulative effect of which caused the ANC to expedite his leaving office," he said.

Mbeki wants the Constitutional Court to help him "clear his name" by allowing him to urgently appeal against Judge Nicholson's deductions that he and his cabinet had interfered in Zuma's corruption prosecution. The judge reached his conclusions without asking to hear Mbeki's side of the story.

The former president has also told the court's 11 justices that he believed there was a "real possibility that persons with malicious intent" could act on Judge Nicholson's ruling "to the detriment of the office of the president ... members of the national executive and to me personally".

But Hulley disagreed: "If the malicious persons Mr Mbeki refers to ever seek to bring him to justice, then he will have every opportunity to expose the findings and remarks in the Nicholson judgment as the alleged misstatements he claims they are."

Pointing out that Mbeki was fully aware of the "meddling" claims made against him by Zuma in multiple courts and had repeatedly failed to answer them, Hulley argued that now allowing Mbeki's "extraordinary" appeal would not be in the interests of justice.

"(Mbeki) seeks a final order effectively expunging all references to him ... in the judgment on the basis that he ... was not before the court. He thus avoids the risk of all findings implicating him, the risk of having to adduce evidence and the risk of being challenged in respect of such evidence," he said.

Instead of pursuing this route, Hulley said Mbeki could challenge Judge Nicholson's statements - which he said were made because the National Prosecuting Authority insisted on having Zuma's conspiracy claims erased from his court documents - by:

* Suing Judge Nicholson for defamation;

* Taking Zuma to court over his political conspiracy claims;

* Lodging a complaint about Judge Nicholson's conduct at the Judicial Service Commission.

By turning to the Constitutional Court, Hulley said, Mbeki was effectively seeking to interfere with the administration of justice.

The Constitutional Court is expected to decide within the next week whether and how it will hear Mbeki's application.

• This article was originally published on page 1 of The Star on October 03, 2008

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With acknowledgements to Cape Times.