Zuma's lawyer says Mpshe insisted Nicholson address issue of Mbeki's political meddling, writes Franny Rabkin

Acting national director of public prosecutions Mokotedi Mpshe insisted that Judge Chris Nicholson had to deal with the question of former president Thabo Mbeki's "political meddling" in the decision to prosecute Jacob Zuma, says the African National Congress (ANC) president's lawyer Michael Hulley.

This emerged in Zuma's response to Mbeki's application to the Constitutional Court to appeal portions of Nicholson's judgment suggesting that he and his cabinet interfered in the National Prosecuting Authority's (NPA's) work.

The allegations of political meddling were made by Zuma in his founding affidavit to Nicholson's court when he applied to the Pietermaritzburg High Court for an order stating that he had a right to make representations to Mpshe before the director decided to reinstate fraud and corruption charges against him.

This section of the Nicholson judgment was a catalyst in the ANC's national executive committee decision two weeks ago to ask Mbeki to resign as president.

Mpshe had applied in August to Nicholson to the have the paragraphs dealing with the "meddling" struck off the court record. Nicholson refused to do so.

Hulley says that during a meeting in Nicholson's chambers on August 15, Mpshe's counsel insisted Nicholson deal with the allegations of meddling in his judgment. He says his team was "quite content with a low-key approach".

According to Hulley, Nicholson asked what he was to make of Mpshe's application to strike out this section of his judgment, since the issue of "meddling" had been dealt with in oral argument "in a very cursory manner". Should he allow them to "melt into the background" or "thoroughly go into (them) and decide them"?

Hulley says Mpshe's lawyers had told Nicholson that the averments were "very serious matters which were harmful to the prosecution", so the court should deal with them.

"The NPA's persistence in pursuing its substantive striking out application directly brought this about," Hulley says in his Constitutional Court papers.

Mpshe has launched his own appeal against the Nicholson judgment in the Supreme Court of Appeal. In his application, Mpshe also takes issue with Nicholson's pronouncements on political meddling, saying they are not relevant to the issues he needed to decide.

Mpshe's version of the discussion in Nicholson's chambers about striking part of the judgment is very different to Hulley's.

He says an agreement was reached between the parties as to how the application would be dealt with.

The agreement was that if Zuma's counsel did not rely on the allegations of political meddling, they would drop the applications for striking this out of the record and Nicholson could ignore them for purposes of his judgment.

Mpshe quotes Zuma's advocate: "M'Lord, the striking out applications have now actually been laid to rest between us on the basis that M'Lord will consider all the material and if there's anything that M'Lord considers irrelevant or that shouldn't be there, M'Lord will simply disregard it in making M'Lord's decision."

Mpshe says Zuma's counsel mentioned political meddling in their argument, but did not rely on any of those allegations for the order that they were seeking from the court.

He says that during the meeting in Nicholson's chambers, his and Zuma's counsel could not reach agreement. But the only thing in dispute was the question of costs of the application.

Since Zuma's lawyers did not rely on the averments of meddling, putting them before the court by way of affidavit was "scurrilous", and therefore costs should be warded against Zuma.

But Hulley says his counsel maintained at the meeting that the averments were "germane". He insists they were relevant to the main issue, whether or not they were true.

This is because Zuma's counsel had argued in court that the presence of widespread allegations about meddling meant that extra care needed to be taken by the NPA to show that there was no political interference in its work *1.

Mpshe states in his application for an appeal that the issue before the court was whether there was a right for Zuma to make representations to the NPA. "He either had such a right or not. The fact of political interference could not give him such a right if he did not have one anyway."

Hulley and Mpshe agree that it was never argued by Zuma's counsel that Nicholson should decide whether the allegations of meddling were true.

Hulley says the intention was that the truth or falsity of whether there had been political interference would have been taken up later in an application to stay the court proceedings against Zuma.

Hulley says the court "decided that there appeared to be merit in (Zuma's) averments of political interference in his prosecution." But he says this was not a finding of political interference, merely that there was "sufficient credence to (Zuma's) averments of political interference that these allegations (could) not be struck out".

Mpshe says Nicholson's findings on political meddling amount to "inferences of misconduct or bad faith".

He says that because the truth or falsity of the meddling allegations was not raised by Zuma's counsel, the NPA's counsel similarly did not address them.

If it had been raised, the NPA would have been able to respond.

"Mpshe says Zuma's counsel mentioned political meddling in their argument, but did not rely on any of those allegations for the order they were seeking."

With acknowledgements to Franny Rabkin and Business Day.