The cabinet ought to have been given a chance to make presentations in the high court application that inferred former president Thabo Mbeki and his executive had been guilty of interfering in the prosecution of African National Congress (ANC) president Jacob Zuma.

This was said by Mbeki yesterday, replying to papers filed by the National Prosecuting Authority (NPA) and Zuma opposing his application in the Constitutional Court for leave to appeal against the findings of Judge Chris Nicholson ­ which led to the ANC calling on him to resign.

In his judgment, Nicholson pointed at political interference by the executive in the work of the NPA.

His judgment in the case between Zuma and the NPA was meant to decide whether Zuma was entitled to be given an opportunity to make representations before the national director of public prosecutions before being recharged. Nicholson set aside the NPA's decision to prosecute Zuma and suggested that the executive interfered in the activities of the NPA.

Mbeki said in his papers filed yesterday the issues before the Pietermaritzburg High Court between Zuma and the NPA were of a limited factual and legal nature. Mbeki said the proceedings were found to be civil in nature.

"Had the learned judge considered the matters relating to ... the allegations of political interference by members of the national executive (including myself as president) relevant to these proceedings, he ought to have invited the national executive to address him on these matters," Mbeki said.

He said he was not aware of claims that there was a politically driven conspiracy or campaign to render Zuma a political non entity.

Mbeki said he was not aware of the allegations concerning himself specifically or that he was expected to provide testimony concerning certain aspects of the prosecution. He also denied he was aware that the prosecution process on Zuma was allegedly being utilised in furtherance of the political conspiracy alluded to by Zuma.

"I furthermore deny that I did anything which lent support to the prosecution process, as I have always been very much alive to the constitutional imperative that the prosecuting authority exercises its functions without fear, favour or prejudice."

Mbeki said he and many other people understood the findings in the Nicholson judgment as a pronouncement that he and the national executive were guilty of politically interfering with and influencing the prosecution of Zuma.

"The court arrived at specific findings and conclusions, based on inferential reasoning. This application is about the flawed basis for making those findings and arriving at those particular conclusions. It is also about separating the domains of the executive, the legislature and the judiciary.

"It is about the correctness of the findings and conclusions and the fact that these were based on insufficient and one-sided evidence. It is about unnecessarily imputing unlawful, even criminal, and therefore, unconstitutional, conduct to a head of state *1 and his cabinet without offering them a chance to refute or rebut the allegations," Mbeki said.

With acknowledgements to Ernest Mabuza and Business Day.