Did the African National Congress jump the gun by recalling former president Thabo Mbeki on the strength of an untested, contentious high court judgement?

The Supreme Court of Appeal on Friday gave the strongest of indications that it will overturn Judge Chris Nicholson’s ruling of September 12 that declared the case against ANC president Jacob Zuma unlawful and confirmed Zuma’s suspicion of political interference in his case.

Mbeki was recalled on September 20 after a meeting of the ruling party’s national executive committee (NEC) where it was decided that Mbeki should be asked to step down. He resigned the following day.

ANC secretary general Gwede Mantashe confirmed at a press briefing after the meeting that their decision was primarily based on Nicholson’s judgement.

Although Nicholson only had to rule on a technical point -- whether Zuma had to be given an opportunity to make representations to the National Prosecuting Authority before being recharged -- he went much further in his judgement and ended up implicating Mbeki, two former justice ministers and the entire Mbeki Cabinet of interfering in Zuma’s prosecution.

At least three of the five appeal judges hearing the Zuma case gave a strong indication that they differ strongly with Nicholson’s inferences.

Judge Louis Harms was vicious in his criticism of Nicholson’s political inferences, agreeing that they were irrelevant and that he wasn’t entitled to make them.

He and colleagues Ian Farlam and Azhar Cachalia also had little time for Nicholson’s ruling that Zuma should have been heard before being recharged, repeatedly asking Zuma’s lawyer Kemp J Kemp why the ANC president had a legitimate expectation to be heard.

They also disagreed with Kemp’s reading of the constitutional right to make representations.

If overturned, the ANC’s main grounds for asking Mbeki to step down might be gone by January 12. This will be exactly four months after Nicholson implicated the former president in, what the NPA’s advocate Wim Trengove called on Friday, “criminal conduct”.

The NPA has already said that it plans to recharge Zuma if its appeal succeeds, which means the ANC could go to the polls in March or April next year with a president on trial, competing against a party (the Congress of the People) that was mainly formed due to its recalling of Mbeki on the strength of a discarded judgement.

Except for former Limpopo premier Ngoako Ramatlhodi and new party spokesperson Carl Niehaus, no high-ranking ANC officials supported Zuma in court on Friday. His supporters were mainly made up of Free State and Northern Cape ANC leaders, including Ace Magashule and John Block.

With acknowledgements to Adriaan Basson and Mail and Guardian.