Supreme Court of Appeal (SCA) Judge Louis Harms on Friday lashed out at Judge Chris Nicholson's findings that former president Thabo Mbeki and his Cabinet conspired against African National Congress (ANC) president Jacob Zuma.

Harms, who is the most senior of the five judges hearing the National Prosecuting Authority's (NPA) appeal against Nicholson's ruling, told Zuma's advocate, Kemp J Kemp, that Nicholson might have thought he was doing Zuma a favour by ruling on issues that weren't even argued before him *1.

After ruling on September 12 that Zuma wasn't wrong to infer political interference in his prosecution, a number of legal commentators criticised Nicholson for making findings on matters that were not canvassed before him.

This was also one of the NPA's grounds of appeal -- that Nicholson's findings were unsubstantiated and irrelevant.

Now Harms has shown his hand during his questioning of Kemp, attacking any attempts to defend Nicholson's findings of political inference by Mbeki, former justice ministers Penuell Maduna and Brigitte Mabandla, and the entire executive under Mbeki.

Harms: "Were there any allegations in the papers [before Nicholson] that Maduna was involved [in political interference]?"

Kemp: "No, M'lord."

Harms: "So he [Nicholson] was not allowed to make any ruling on that. There were also no allegations made about Mabandla. Her name doesn't even appear on the papers!"

Harms also said he found no direct accusations against Mbeki or his Cabinet in the court papers filed in Pietermaritzburg.

Nicholson wasn't doing Zuma any favours, although he might have thought so, Harms said *2.

This comment closed argument on the political interference issue and Kemp began his address on why Nicholson was right to find Zuma should have been given an opportunity to make representations before being recharged by the NPA.

Harms grilled Kemp on why Zuma thought he had a legitimate expectation to make representations to NPA. Kemp said that in a constitutional dispensation, national directors of public prosecution are political appointees and should be open to scrutiny.

Profound consequences

Meanwhile, Mbeki and two of his justice ministers might be criminally charged if the SCA confirms Nicholson's ruling that they interfered in the prosecution of Zuma *3. That's according to NPA advocate Wim Trengove, who argued on Friday morning that Nicholson's inferences of political interference should be scrapped.

Asked by the appeal judges why they should rule on something that was not an order of the court, Trengove said he accepts the finding is "entirely irrelevant", but that it has profound consequences for the NPA. These are:

    * Zuma's plans to launch an application for a permanent stay of his prosecution. It would be damaging for the NPA to go into such an application with Nicholson's ruling still standing;

    * The allegations of "gross misconduct" by three consecutive national directors of public prosecutions; and

    * The "suggestion" that Mbeki and former justice ministers Maduna and Mabandla were guilty of criminal conduct. This will have to be investigated if Nicholson's judgement stands.

Trengove said it would suffice if the SCA ruled that Nicholson's findings about a political conspiracy against Zuma were irrelevant, and that he didn't ask for a court order on the matter.

Advocate Marumo Moerane, who made representations on behalf of Mbeki, only addressed the court for 13 minutes after he was extensively questioned by the appeal judges on Mbeki's standing in a matter to which he was not a party.

"The court [Nicholson] had absolutely no regard in the manner it dealt with the allegations [of political conspiracy] for the dignity and status of the former president and his office," Moerane said.

With acknowledgements to Adriaan Basson and Mail and Guardian.