Former president Thabo Mbeki never responded to claims by his political rival Jacob Zuma that he was involved in a conspiracy against Zuma ­ claims Zuma has made regularly in court cases against him since 2006.

That was until last month, when Judge Chris Nicholson suggested Mbeki was meddling in the affairs of the National Prosecuting Authority (NPA), which was prosecuting Zuma.

Zuma yesterday lodged papers opposing Mbeki's application for leave to appeal to the Constitutional Court against the findings of Nicholson on political interference by the executive in the work of the NPA .

Mbeki said in his application he believed if Nicholson's findings were left unchallenged it would violate his constitutional rights.

"It is contended that a party cannot have the rights and benefits of a litigant by joining in at the appeal time and at the same time escape the risks of being a litigant from the start," Zuma's lawyer, Michael Hulley, said in his replying affidavit.

He said Mbeki sought a final order that effectively expunged all references to him on the basis that he was not before the court. Hulley said Mbeki sought to avoid the risk of all findings implicating him, the risk of having to give evidence and the risk of being challenged in respect of such evidence.

Hulley said when Judge Herbert Msimang refused the state's application for a postponement of Zuma's criminal trial in 2006, Zuma also brought an application for a permanent stay of prosecution, which was not heard *1.

The permanent stay application papers included allegations concerning Mbeki and the need for him to provide testimony concerning certain aspects of the prosecution and the purported evidence against Zuma.

"It was also clearly alleged that there was a politically driven conspiracy or campaign to render Mr Zuma a political nonentity and effectively destroy Mr Zuma as a political leader and role player and the main rival of President Mbeki for the leadership of the ANC and the country," Hulley said.

Hulley said there was little doubt that Mbeki was fully aware of these averments involving him *2 and his conduct as part of the anti-Zuma movement which affected Zuma's prosecution. In those proceedings, Hulley said Zuma implored the prosecution to obtain statements from Mbeki, who was described as a cardinal witness. The prosecution effectively ignored this.

Hulley said there was no attempt by Mbeki to intervene in the matter or to provide affidavits to the court or any information to the NPA, or to provide any information on any of the issues raised on the papers which involved him.

"The significant eagerness to be part of the process and/or to provide evidence and/or to inform the NPA and/or the court of the true state of affairs, which seemingly underlie this application, was conspicuously absent then."

Hulley said Mbeki's failure to provide the National Director of Public Prosecutions (NDPP) with evidence, or to join in the proceedings, was a deliberate one done with the knowledge that findings which might constitute adverse comment on Mbeki could result.

"Such conduct is completely in line with Mr Mbeki's conduct in dealing with such matters in the past*3," Hulley said.

Hulley sited three examples where Mbeki did not respond, including the permanent stay application in 2006, Zuma's application challenging the letter of request to the Mauritian authorities, and suspended NDPP Vusi Pikoli's testimony to the Ginwala commission.

Pikoli testified that the reason Mbeki suspended him was to stop the prosecution of police commissioner Jackie Selebi. Pikoli also accused the government and Mbeki of being untruthful about the reasons provided for his suspension.

Hulley said despite the direct evidence of Pikoli of such behaviour, Mbeki saw it fit not to testify in any form or format before the commission.

With acknowledgements to Ernest Mabuza and Business Day.