President Thabo Mbeki applied to the Constitutional Court yesterday for leave to appeal against the findings of Judge Chris Nicholson on political interference by the executive in the work of the National Prosecuting Authority (NPA).

Mbeki said he believed that if Nicholson's findings were left unchallenged it would violate his constitutional rights *1.

Nicholson declared that the decision taken by the NPA last December to prosecute African National Congress (ANC) president Jacob Zuma was invalid.

The judgment was seen as vindication of Zuma's claims of a political conspiracy against him, and was the catalyst for Mbeki's recall from office and subsequent resignation.

In his affidavit, Mbeki said his recall was a "direct result" of Nicholson's findings.

Alternatively, Mbeki has asked the court to declare that Nicholson's findings breached his rights to dignity and access to court and to set them aside. Zuma and the national director of public prosecutions are respondents.

Mbeki said the matter before Nicholson was a "very narrow issue *2": whether Zuma had a right to make representations to the NPA. It "was not necessary" for Nicholson to make the findings against him to decide the Zuma matter.

Mbeki denied Nicholson's findings, saying they were "highly prejudicial to myself, both in my capacity as head of state and head of the national executive, as well as in my personal capacity". They were "equally damaging" to the standing of the national executive and the current and past justice ministers *3.

"The findings do not only suggest I have acted improperly or without integrity, all of which are injurious to my good name, reputation and my right to human dignity ... but also go further in that they in effect say that I have failed to fulfil the constitutional obligation to uphold and respect the constitution as the supreme law of the republic *4."

His rights were breached by aspects of Nicholson's judgment, including the finding that his firing Zuma as deputy president "was unfair and unjust given the fact that (Zuma) was not given a chance to defend himself in a court of law".

"The learned judge then goes further to conclude that I not only knew about the political interference of (former justice minister Penuell) Maduna but also agreed to it, and that in terms of the law and the constitution there is a responsibility attributable to the president and his cabinet for what Mr Maduna did *5.

"These actions, the learned judge found, constituted political meddling in the prosecution of (Zuma)."

Mbeki acknowledged Nicholson's findings did not amount to a "judgment or order", and he had no remedy in the high court or the Supreme Court of Appeal to set aside those findings. That was why he approached the Constitutional Court.

"Unless the errors in the judgment are rectified immediately by means of a judgment I will continue to suffer and may even suffer great harm as would the office of the president of the Republic of SA and members of the national executive *6."

With acknowledgements to Franny Rabkin, Ernest Mabuza and Business Day.