A judge accused of failing to properly investigate apartheid-era hit squads is one of five mooted to decide the future of Jacob Zuma's corruption prosecution.

While the Supreme Court of Appeal (SCA) is maintaining a stony silence about which of its judges will decide whether Zuma's prosecution was invalid, it has been learnt that the bench will be led by SCA Acting Deputy Judge President Louis Harms.

Self-confessed former Broederbond member Harms was recently questioned about his role as chairperson of a 1990 commission that found "no evidence" to support claims of the existence of apartheid-era death squads - claims that later turned out to be true.

Judge Azar Cachalia, a former human rights lawyer and State witness in Winnie Madikizela-Mandela's murder and kidnapping trial, is also said to be on the as-yet-unconfirmed bench, as is Judge Ian Farlam.

Farlam was one of two judges in a minority judgment to rule in Zuma's favour during his ultimately unsuccessful bid to stop the State from using evidence gathered against him during the Scorpions' controversial August 2005 raids.

Judges Nathan Ponnan and Mandisa Maya are also understood to be hearing the State's appeal against Pietermaritzburg High Court Judge Chris Nicholson's ruling, which declared Zuma's prosecution invalid and found there was "merit" to his political conspiracy suspicions against the state and ex-President Thabo Mbeki.

Harms has applied for the permanent position as the SCA's Deputy Judge President and was interviewed by the Judicial Service Commission (JSC) last month.

After being confronted about his three-year membership of the Broederbond before he became a judge and controversial chairing of the Harms Commission into apartheid hit squads, Harms reportedly denied any suggestion that his objectivity was questionable.

Explaining why he had ultimately found there was no evidence of hit squads, Harms said witnesses had lied, the police had falsified evidence and death squad commander Eugene de Kock had assassinated one of his witnesses.

As a result, Harms could not find that there was evidence of a hit squad at Vlakplaas.

    * This article was originally published on page 3 of The Pretoria News on November 11, 2008

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With acknowledgements to Karyn Maughan, Louise Flanagan and Cape Times.