Prosecuting Jacob Zuma was unconstitutional and illegal because the National Prosecuting Authority (NPA) had failed to inform the former deputy president that it had reviewed its earlier decision not to charge him, the Pietermaritzburg High Court heard on Wednesday.

Zuma counsel advocate Kemp J Kemp said that when National Director of Public Prosecutions (NDPP) head Vusi Pikoli announced his intention to review the case he was constitutionally obliged to allow Zuma to make representations.

He said that Zuma had not been given that opportunity.

Kemp said the Constitution required that when the NPA reviewed a decision to prosecute, it was obliged to allow the accused representation.

"It is quite clear that it was done contrary to the law. We say it was unconstitutional," said Kemp.

Kemp said Zuma had suffered social prejudice since Pikoli's predecessor Bulelani Ngcuka announced on August 23 2003 that there was a "prima facie" case of corruption, but it was unwinnable.

Kemp is arguing against the state's application for a postponement of the corruption trial of Zuma and arms company Thint.

Zuma is accused of having accepted a R500 000 a year bribe from Thint in exchange for protection from a probe into South Africa's controversial multibillion-rand arms deal.

Kemp said that Schabir Shaik's appeal against his conviction on charges of fraud and corruption will have little impact on the indictment served on Zuma.

Kemp said that the appeal of Shaik, Zuma's former financial adviser, and the outcome of legal challenges to search and seizure raids carried out last year would only affect a new indictment.

Kemp is arguing against the state's application for a postponement of the matter.

Advocate Wim Trengove said on Tuesday that the state would be ready with a new indictment by October 15.

Kemp said: "The state does not want to continue with the old indictment."

He said the defence would be ready to deal with the current indictment "in a short period" and that decisions taken in Shaik's appeal as well as legal challenges would be of "little consequence" to the current indictment.

Kemp questioned whether an indictment served on October would be final.

He told the court that there would be no certainty when documents from Mauritius would be secured by the state, referring to documents seized from Thint's office there.

Judge Herbert Msimang asked: "Surely the trial can proceed even without the document, even if it is submitted during the trial?"

Kemp said the state should proceed with the current indictment and that if the various legal challenges went in favour of the state, the state could then later charge Zuma separately.

Zuma and Thint are asking that the court dismiss the trial because the case has been prejudiced by unreasonable delays caused by the state.

The state is seeking a postponement.

Shaik's appeal is expected to be heard at the end of September. 

With acknowledgements to Sapa and Mail & Guardian.