The former president is doing everything he can to undo the damage the Nicholson judgement caused to his reputation

Former president Thabo Mbeki's application to the Constitutional Court has been slammed by legal experts as unprecedented, without merit and "breathtaking".

Mbeki, acting in his personal capacity and as former head of the national executive, filed court papers this week in a last desperate bid to clear his name after Judge Chris Nicholson's damning judgement two weeks ago. The high court judge declared the charges against Jacob Zuma invalid and criticised Mbeki and the entire executive for meddling in the legal process.

Nicholson was forced to rule on Zuma's allegations of a political conspiracy after the National Prosecuting Authority (NPA) asked for Zuma's "vexatious" comments to be struck from his court papers.

In an "extraordinary" and unprecedented move Mbeki is asking the Constitutional Court for permission to appeal against Nicholson's judgement, although he was not a party to the Pietermaritzburg proceedings.

Mbeki's application is largely based on three points:

That he had no chance to give evidence on the allegations of conspiracy in the Zuma trial;

That he was recalled by the ANC on the basis of Nicholson's "flawed" judgement; and Mbeki is seeking the indulgence of the Constitutional Court with his appeal.

That he has no standing in the high court or Supreme Court of Appeal because no judgement or order was made against him and is therefore seeking the indulgence of the Constitutional Court.

A senior Johannesburg advocate accused Mbeki of "going off sideways" while the NPA is still preparing its application for leave to appeal.

"But he also has another problem: what he [Mbeki] seems to be wanting to do is to review a high court judge. There is no such thing as reviewing high court judges and the courts have made it clear that you can only appeal orders. Very often judges say harsh things about all kinds of people, but I'm afraid you've got to take that on the chin." The advocate described Mbeki's application as "extraordinary" and "breathtaking".

"This complicates matters. It puts the Constitutional Court on the spot. The court can't really tell Mbeki he's crazy and to bugger off ­ they're going to have to hear this debacle."

But, even though he was attacking Mbeki, he also criticised Nicholson's "loose and silly" judgement.

"He had an up-and-down constitutional matter to deal with, but this [judgement] is really Agatha Christie stuff. Judges must learn to shut up, particularly when they can do collateral harm to people. Nicholson has effectively brought down a government *1."

Constitutional law expert professor Pierre de Vos agrees that Mbeki will struggle to convince the court he should be heard despite not being a party to the Pietermaritzburg proceedings.

"But Mbeki's lawyers also made a second ­ in my opinion more compelling ­ argument. This is that in terms of section 83(b) of the Constitution that the president of South Africa is obliged to uphold, defend and respect the Constitution as the supreme law of the republic." The argument, according to De Vos, would be that Nicholson effectively made findings that the president failed to fulfil his constitutional obligations to respect the independence and impartiality of the NPA.

"This seems like a rather compelling argument to me. Given the fact that Nicholson had made far-reaching findings about the failure of Mbeki to uphold the Constitution, one may well argue that the judge strayed into the jurisdiction of the Constitutional Court and overreached."

A Durban-based senior advocate said he has "never seen something like this [the Mbeki application] before". According to him many of the answers and explanations Mbeki now wants to give the court could have been put forward by the NPA in the Zuma application.

He drew parallels with Judge Hilary Squires's judgement in the Schabir Shaik matter, which implicated Zuma in a corrupt relationship.

"If he [Zuma] goes to trial, the findings of the Shaik case can't be held against him in any way. But the judgement stands and he [Zuma] will never have the right to undo what Squires said."

As the NPA finalises its application for leave to appeal the Nicholson judgement, an advocate with insight into the case told the Mail & Guardian a political solution to Zuma's legal problems remains a possibility and one option would be to replace acting NPA head Mokotedi Mpshe with a permanent appointee more sympathetic to Zuma's cause.

But, given the sensitivities around political interference following the Nicholson judgement, the ANC would be "wise" to pursue the legal route, including a revived application for a permanent stay of prosecution.

With acknowledgements to Stefaans Brümmer, Adriaan Basson and Mail and Guardian.