Former president Thabo Mbeki and the government have applied to the Supreme Court of Appeal (SCA) to intervene in the National Prosecuting Authority’s (NPA’s) appeal against Judge Chris Nicholson’s judgment.

Alternatively, they have applied to join as “friends of the court”.

The application was made on Friday. In a supporting affidavit by Frank Chikane on behalf of the government, the cabinet secretary said he met President Kgalema Motlanthe and Justice Minister Enver Surty on October 10, where the decision to appeal against Nicholson’s judgment was confirmed.

Chikane said cabinet members were concerned about the effect of Nicholson’s judgment “on their ability to continue to serve this country with honour and dignity”.

Nicholson’s judgment set aside the NPA’s decision to prosecute African National Congress president Jacob Zuma, saying he had a constitutional right to make representations to the NPA before such a decision was taken.

In his judgment in the Pietermaritzburg High Court on September 12, Nicholson implied that Mbeki and other members of the executive had interfered politically in the work of the NPA.

Mbeki’s SCA appeal bid follows the dismissal of his application to appeal against Nicholson’s judgment at the Constitutional Court. The NPA’s appeal to the SCA is also contesting the parts of the judgment that dealt with political interference.

In his application, Mbeki said the SCA had “the inherent power and a duty to grant us leave to intervene to ensure that we, who have a direct and substantial interest in the subject matter of the appeal, and whose rights have, or may be affected by any judgment, including on appeal, are before the court and our interests are safeguarded”.

Mbeki did not detail in his application what his “direct and substantial interest” was, nor how an order or judgment of the SCA in the appeal would affect his rights.

The general rule in law is that only an actual court order may be appealed against.

With acknowledgements to Franny Rabkin and Business Day.