ANC deputy president Jacob Zuma should not rely on the Public Protector's re-port to prove that his rights were violated by the National Prosecutions Authority (NPA) because Lawrence Mushwana's findings were flawed, nonsensical and misdirected and he had applied artificial reasoning.

This is the view of the NPA in its fight with Zuma prior to his corruption case in the Pietermaritzburg High Court next week.-

Yesterday Scorpions head Leonard McCarthy filed an answering affidavit in re-sponse to Zuma's sworn statement in which Zuma pointed to Mushwana's report as a basis to show that the NPA had abused its powers.

In defence of the NPA, McCarthy invoked the NPA's old response document to Mushwana's widely publicised report which was an-nounced in parliament in 2004.

The NPA response document was not made public for two years because there was a political compromise to avoid the country's two institutions publicly embarrassing each other.

Zuma had complained to Mushwana that former na-tional director of public prosecutions Bulelani Ngcuka had crushed his rights by publicly announcing that there was a prima facie case of corruption against the former deputy president but that he would not be prosecuted because the case was unwinnable.

The NPA said Mushwana "struggles with the meaning of prima facie".

"It is submitted that the apparent contradiction that the Public Protector attemp-ted to establish as an indication that (Ngcuka) acted im-properly by making the statement is artificial.

"It becomes even more nonsensical in the light of his finding that (Ngcuka) was aware of the summary of substantial facts, which the Public Protector agrees sets out the prima facie case against Zuma," the NPA said.

The NPA said the statement was not improper because it was based on allegations contained in a charge sheet. Zuma, according to the NPA, would have had a valid case if the allegations in the charge sheet were made without foundation.

The NPA said Mushwa-na's report contained glaring and obvious inaccuracies.

"Taking everything into account, the impression is created that the Public Protector was under tremendous pressure to conclude investigations before a certain date and, with respect, the opinion is held that in this hasty pro-cess he failed to follow the prescribed and desirable procedure," said the NPA's re-sponse document, which was a joint statement by Ngcuka and former justice minister Penuell Maduna.

Mushwana had already formulated a view that Zu-ma's constitutional rights had been prejudiced "and therefore he had to find a reason to support this view", the NPA said.

"The Public Protector wrongly assumed judicial powers when he made findings that (Ngcuka) and (Ma-duna) acted unconstitutionally when they failed to co-operate … he therefore acted ultra vires," the NPA said, adding that only the High Court and the Constitutional Court could rule on constitutionality disputes.

The NPA also questioned Mushwana's overall investigations.

"It is not clear what the Public Protector's investigations were all about. It ap-pears from the report of the Public Protector that at the centre of the complaint of (Zuma) is the allegations of the abuse of power. In fact this allegation has been consistently raised by (Zuma).

"On 30 August 2003, [Zuma] brought an application in the Transvaal Provincial Division of the High Court … and, among others, raised allegations of abuse of power by the national director.

"It is surprising that this allegation was not investigated," the NPA said.

With acknowledgement to Moshoeshoe Monare and Cape Argus.