South Africa's former president Thabo Mbeki did not have to resign his post, but could have waited to be fired by the ruling ANC, Zuma's legal team claimed in papers lodged with the Constitutional Court on Thursday.

The papers filed by Zuma's attorney Michael Hulley said that Mbeki had complained that because of Nicholson's "findings" and the references to him in the judgment, "he was asked to resign from his post as President.

"The Applicant (Mbeki) did not have to resign *1; he could have refused. It was then for the ANC to consider whether to remove him despite his desire to remain in his post until his second term runs out between April and July 2009."

He said it was not the Nicholson judgment alone that had led to Mbeki's recall, but a cumulative effect of events that had prompted the ANC to recall him. *2

"What must be remembered is that the accusations of political meddling did not come from the Trial Judge; they came from the leader of the ANC and the Applicant's political rival for that position."

Hulley also said Mbeki never attempted to intervene against allegations of political interference despite the wide publicity and opportunity to do so.

He said that Mbeki's application to appeal certain parts of Nicholson's September 12 judgment was "misconceived and bad in law".

Zuma maintains Mbeki "must have known at all material times of the allegations and issues" before Nicholson but had never sought to intervene in the case until after the Nicholson judgment.

Mbeki is appealing against "certain findings" made by Nicholson in the judgment that ruled that the prosecution of Zuma on racketeering, money-laundering, corruption and fraud charges was invalid.

Mbeki is asking the Constitutional Court to order that the High Court "ought not to have made findings of and concerning" him "without having afforded him a hearing" and that these findings "constitute a violation of his rights". He wants the findings set aside.

In his affidavit, Mbeki said Zuma appeared to have alleged that there must have been political interference in the decision to prosecute him.

However, in his papers lodged on Thursday, Hulley said that Zuma's 2005 application for a permanent stay of prosecution "contained allegations of abuse of process endangering the Accused's (Zuma) fair trial rights."

He said the application dealt "with the issue of political pressures, manipulations and influence playing a role in the prosecutorial decision making as to whether to institute a prosecution or not against Mr Zuma and in the manner the prosecution was being conducted".

The permanent stay of prosecution was never heard as Judge Herbert Msimang struck the case from the roll after the State's application for an adjournment was not granted.

"These averments (of political interference) were given wide, and to some extent, sensational coverage in the press. The mass media published these allegations persistently and extensively. *3

"There is and was little doubt that the President was fully aware of these averments involving him and his conduct as part of the anti-Zuma movement which affected Mr Zuma's prosecution and the manner thereof."

Hulley said that prior to Nicholson hearing Zuma's application to have the decision to charge him declared unlawful, Zuma had invited "submissions from any potential amicus curiae (friend of the court)".

"The Applicant's failure to provide the NDPP with countervailing evidence, or to join in the proceedings, was in contention, a deliberate one with knowledge that findings or reasoning which may in a general sense constitute adverse comment on Mr Mbeki or other persons in Government may result," said Hulley.

He put it that Mbeki may be more concerned at the public perception of Nicholson's judgment.

Hulley pointed out Nicholson did not need to have proof beyond a reasonable doubt that there was political interference and Zuma needed simply to prove "the mere existence of allegations of a political conspiracy or influence sufficed to negate the existence of vexatiousness".

The National Prosecuting Authority is also opposing Mbeki's application, primarily because it fears that the Constitutional Court may rule on matters that are part of its application to appeal the Pietermaritzburg High Court judgment.

Hulley said Zuma intended opposing the NPA's application and that Mbeki's application may interfere in Zuma's bid to oppose the NPA application.

"What the applicant effectively seeks before this court is to interfere with the administration of justice in and the functioning of those other courts." - Sapa

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With acknowledgements to Sapa and Cape Times.