30/09/2008 21:15 - (SA)
Johannesburg - Judge Chris Nicholson had no grounds to rule on the establishment of an arms deal inquiry or to comment on former president Thabo Mbeki's decision to dismiss Jacob Zuma as deputy president of the country, according to the NPA.
In its application to the Pietermaritzburg High Court on Tuesday for leave to appeal against the judgment handed down by Nicholson earlier this month, the National Prosecuting Authority said that neither issue was actually 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.
In its papers filed in court on Tuesday, and 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", the NPA said this was irrelevant to the case being argued.
It also said that Nicholson's judgment, 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 states 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.
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".