'Whether Zuma was entitled to a hearing before charging him was the only relevant issue'

Judge Chris Nicholson had no grounds to rule on the establishment of an arms deal inquiry or to comment on then-President Thabo Mbeki's decision to dismiss Jacob Zuma as deputy president of the country, says the National Prosecuting Authority.

Applying yesterday to the Pietermaritzburg High Court for leave to appeal against the judgment handed down by Judge Nicholson on September 12, the NPA said neither issue was relevant to Zuma's application to have the decision to charge him declared unlawful.

Judge Nicholson ruled in favour of the ANC president, saying that Acting National Director of Public Prosecutions Mokotedi Mpshe should have obtained representation from Zuma before deciding to charge him. Zuma faced one charge of racketeering and money laundering, two charges of corruption and 12 charges of fraud related to the arms deal.

In papers filed yesterday, the NPA - referring to Nicholson's judgment where he said Mbeki's decision to run again for president was "at its lowest, controversial, and not in accordance with the Westminster system we espouse in this country" - said this was irrelevant to the case being argued.

It also said Nicholson's judgment that "the decision of Mr Mbeki to dismiss the applicant from his office as deputy president … was unfair and unjust because the applicant had not been given a chance to defend himself in a court of law", was not an issue raised by either the State or Zuma's legal team.

In the papers signed by State prosecutor Anton Steynburg, the NPA said Judge Nicholson had "committed an irregularity" when he held that a commission of inquiry should investigate the arms deal.

It also said Nicholson had erred when he ruled "that the involvement of the former Minister of Justice Penuell Maduna in the events leading to the August, 2003 decision by the former NDPP Bulelani Ngcuka not to prosecute the applicant despite there being a prima facie case of corruption against the applicant, and in the events leading to Mr Ngcuka's May, 2004 decision to withdraw the charges against Thomson-CSF (Pty) Ltd (now Thint (Pty) Ltd), was most regrettable and constituted a serious criminal offence".

The NPA said Nicholson's ruling on Zuma's claim of political interference was irregular because Zuma's application was "based on and limited to legal submissions".

Zuma himself, the NPA said, had not relied on the issue of political interference in his founding affidavit to have the charges declared unlawful.

Zuma had said: "In dealing with events leading up to the present prosecution I shall endeavour to steer away in so far as is feasible from contentious issues such as the political motives and stratagems which I verily believe were and are the driving forces behind many of the actions of the prosecuting authorities and those who influence these."

The NPA said: "… the only question for decision was whether the applicant had a right to a hearing before a decision was taken to charge him".

Nicholson was also accused of failing to consider the rejections of political interference by Ngcuka, former NPA boss Vusi Pikoli, and Mpshe.

In its application, the NPA states a total of 16 grounds that it has for appeal including that "the court erred in holding that the NDPP had to request and consider representations from the applicant" prior to the 2005 decision by Pikoli and the 2007 decision to prosecute Zuma.

It also maintained that Zuma was not constitutionally entitled to a representation before the decision to prosecute him was taken. - Sapa

With acknowledgements to Sapa and Cape Argus.