African National Congress (ANC) president Jacob Zuma says former President Thabo Mbeki could not appeal Judge Chris Nicholson's findings because the findings did not constitute a "judgment or an order" of court.

This was in response to Mbeki's urgent application last month to the Constitutional Court for leave to appeal the judgment, which led directly to Mbeki being forced from office.

Nicholson set aside the criminal indictment against Zuma, suggesting the executive, and Mbeki, had interfered in the work of the National Prosecuting Authority, statements Mbeki took issue with in his appeal.

Zuma's attorney, Michael Hulley, says Mbeki did not attack Nicholson's order, but restricted his appeal to certain "findings" made by Nicholson.

He said, "(Zuma) contends that it is neither permissible, nor is it in the interests of justice, that a judgment of a court, binding between the parties to that judgment, be effectively undermined by allowing a stranger to that judgment to seek to impugn its reasoning but not directly its outcome."

Hulley, in an indication of how he would oppose the national director of public prosecutions' own appeal of the Nicholson judgment, said the findings were not "appealable by any person, including (Mbeki)" *1.

The legal principle was that "provided no binding findings or orders are made against a person, judges can endorse propositions that a person is probably a criminal and guilty of the most serious crimes impacting very severely on his reputation".

Even when this happened, Hulley said in court papers, it did not give the offended person a right to appeal.

The result of adopting Mbeki's approach would mean any person spoken of adversely by a judge in a court case he was not party to would have recourse to appeal ­ including Zuma.

Hulley said: "If the relief (Mbeki) seeks is feasible, it means that given the right to equality, (Zuma) is entitled to seek the expungement of all references to him in the Shaik judgments in Shaik's criminal trial, the judgment on application for leave to appeal to this court and the three judgments relating to the asset forfeiture applications.

"That is not how (Zuma) and his legal advisers understood the South African legal system but if they were incorrect, the necessary corrective litigation will follow." *2

With acknowledgements to Franny Rabkin and Business Day.