ANC president Jacob Zuma should have complained a lot sooner than he did if he believed the National Director of Public Prosecutions, Mokotedi Mpshe, had violated his constitutional rights.

This is according to the heads of argument filed by the state in the Pietermaritzburg High Court on Wednesday afternoon.

Zuma claims that the NPA was obliged in terms of the constitution and the National Prosecuting Authority Act of 1998 to give him the opportunity to make representations before it decided to prosecute him in 2005 and 2007.

He also claims that the decision to prosecute him was reversal of a decision taken by former national director of public prosecutions Bulelani Ngcuka, who announced in August 2003 that he had a prima facie case against Zuma, but would not be prosecuting him.

The state asked why Zuma was only in 2008 questioning the decision of Ngcuka's successor Vusi Pikoli, who opted to prosecute Zuma following the conviction of Durban businessman Schabir Shaik in August 2005.

"We submit at the outset that the court should decline to review the Pikoli decision because it has become moot and the application for its review is out of time."

It also emerged that Zuma's lawyer, Michael Hulley, had written to the NPA on October 11, 2007, requesting "an opportunity to be heard".

The state contended that Hulley had been told by Mpshe that he would not be able to make representations.

"When the Acting NDPP declined their request in his reply of 12 October 2007, they did not protest as they would have done if they had any real expectation of a hearing."

Zuma was charged on December 28, 2007.

He faces a charge of racketeering, four charges of corruption, a charge of money laundering and 12 charges of fraud.

Judge Chris Nicholson will preside over Zuma's application to have the decision to prosecute him declared unlawful.

The application will be heard in the Pietermaritzburg High Court on Monday and Tuesday.

With acknowledgements to Jenni O'Grady and Sapa.