The DA could not force the Director of Public Prosecutions (DPP) to prosecute President Jacob Zuma because it was unconstitutional to prosecute a sitting state president, Zuma's lawyer told the Pretoria High Court yesterday.

Zuma's senior advocate, Kemp J Kemp, argued that the DA could not have any legal standing "to seek an order that a State organ must act unconstitutionally *1 by reinstating the prosecution (against Zuma)".

"Mr Zuma is the head of the executive and of the armed forces... One arm of the executive cannot act in a manner that paralyses another arm of the executive," he said.

Kemp argued that if Zuma were prosecuted, he would be required to sit in a court instead if doing his duties, such as appointing judges. He would effectively be prevented from exercising his powers.

If it was the will of the people, he said, a president could be impeached and then indicted, or one would have to wait until he finished his term and then indict him.

The DA had as much interest in the president's prosecution as "Joe Soap", kemp said.

This was not enough to establish the DA's legal standing to either ask for the record of the proceedings leading to the decision not to prosecute, or to seek a judicial review of the decision, he said.

"You cannot create your own legal standing by being a busybody."

Kemp said defence contractor Richard Young and his company CCII had not suffered harm because of anything Zuma had done.

Their complaints were not even mentioned in the indictment against Zuma and they had no direct or substantial interest in the decision not to prosecute Zuma, he said.

Kemp insisted the DPP's decision not to prosecute Zuma was an internal decision based on confidential information and not a transparent process that was reviewable.

The DPP was obliged to stop the prosecution if there was prosecutorial abuse, as happened in Zuma's case, even if the case against the accused was strong and there was still a chance that he could have a fair trial, he said.

The DPP and Zuma have asked the court to refuse an application by the DA for a reduced record and the application by Young and CCII to intervene in the DA's application to review the decision.

Counsel for the DA, Sean Rosenberg SC, argued that the DA, as official opposition in Parliament, had a direct interest in Zuma's prosecution as the charges against him included that he had failed to declare the proceeds of bribes to the secretary of Parliament.

Acting Judge Natvarial Ranchod reserved judgment, but gave the parties time to file further written heads of argument on certain of the legal disputes in the case.

With acknowledgements to Sapa and Pretoria News.

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1.       Another beauty from the Emperor of Crap.

It never ceases to amaze me how senior counsel spout forth such manure on behalf of their clients.

But at R3 000 per hour and R15 million of taxpayers' tax later, my amazement is clearly misplaced.

May the emperor be found to be wearing no no clothes.

Although back at his ranch the cupboard will be overflowing indeed.


2.      Previous court proceedings have shown that Mr Zuma is a common criminal, being protected by criminals.