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, according to the National Prosecuting Authority.
In its application to the Pietermaritzburg High Court on Tuesday for leave to appeal against the judgement handed down by Nicholson earlier this month, the NPA said that neither issue was relevant to Zuma’s application to have the decision to charge him declared unlawful.
On September 12 Nicholson ruled in favour of the African National Congress president and said that Acting National Director of Public Prosecutions, Mokotedi Mpshe, should have obtained representation from Zuma before deciding to charge him.
Zuma faced a charge each of racketeering and money laundering, two charges of corruption and 12 charges of fraud related to the multibillion-rand government arms deal.
He was charged in 2005, but that case was struck from the roll in 2006. He was recharged in December 2007.
In its papers filed in court on Tuesday, and referring to Nicholson’s judgement 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”, the NPA said this was irrelevant to the case being argued.
It also said that Nicholson’s judgement, in stating that ”the decision of Mr Mbeki to dismiss the applicant from his office as deputy president of the Republic of South Africa 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.
”None of those issues were material to the resolution of the case. This court was accordingly not acting in pursuance of its duty to resolve the dispute between the parties.”
In its application the NPA stated 16 grounds that it has for appeal, including the fact that it believes that ”the court erred in holding that the NDPP had to request and consider representations from the applicant” prior to the 2005 decision by former NPA boss Vusi Pikoli and the December 2007 decision to prosecute Zuma.
The NPA maintained in its papers that there had been no review of the decision to prosecute Zuma but that it ”was a fresh decision taken after the prosecution started by the Pikoli decision had been terminated by the order of Msimang J striking the matter from the roll in September 2006.”
The NPA, in the papers signed by state prosecutor Anton Steynburg, claimed the court had ”committed an irregularity” when Nicholson held that a commission of inquiry should be established to investigate the arms deal.
It also said that Nicholson had erred when he ruled ”that the involvement of the former minister of justice and constitutional development 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 pointed out that Zuma’s founding affidavit ”contained numerous accusations of bad faith which were not only entirely irrelevant to the applicant’s causes of action but in many instances were based on hearsay evidence or no evidence at all.
‘The NDPP consequently brought the application to strike out those parts of the founding affidavit”. – Sapa