In the Pietermaritzburg High Court today Judge Chris Nicholson will have to balance arguments from African National Congress (ANC) president Jacob Zuma on why prosecutors have no title to prosecute him, and also consider arguments from prosecutors on why Zuma's application is ill-founded and devoid of any merit in law.

Zuma's application for an order reviewing and setting aside the decision to prosecute him is set to be heard today and tomorrow.

Nicholson will weigh arguments surrounding the proper interpretation of section 179(5)(d) of the constitution, which states that the national director of public prosecutions (NDPP) may review a decision to prosecute after consulting with the relevant director of public prosecutions (DPP) and after taking representations from the accused.

The National Prosecuting Authority (NPA) instituted the prosecution of Zuma and French arms company Thint. The indictment contains one charge of racketeering and four charges of corruption. Zuma has also been charged with 12 counts of fraud.

Zuma argues that acting DPP Mokotedi Mpshe or suspended director Vusi Pikoli did not review the decision taken by Bulelani Ngcuka in 2003 not to prosecute Zuma.

The state argues that the requirements of section 179 (5)(d) are applicable only when the NDPP reverses the DPP's decision. It also contends that the 2007 decision to prosecute Zuma did not amount to a reconsideration or review of a previous decision.

The application today follows the judgment by the Constitutional Court on Thursday which dismissed Zuma's appeal against the validity of search and seizure warrants that were granted by Transvaal Judge President Bernard Ngoepe three years ago. The court also dismissed Zuma's appeal to stop the NPA from accessing originals of documents in Mauritius that the state used in the conviction of Zuma's former financial adviser Schabir Shaik.

In his heads of argument, Zuma said the main issue related to the NDPP's obligation to invite and consider any representations by at least Zuma before the decision to reverse the 2003 decision not to prosecute him.

Zuma said Ngcuka publicly announced that the NPA would not charge him.

"In June 2005, shortly after Shaik's convictions, (Vusi) Pikoli, the new NDPP who replaced Ngcuka, decided to review the case against Zuma and to charge him with essentially the same offences. There was no attempt at compliance with section 179(5)(d) of the constitution," Zuma's advocate Kemp Kemp SC said in papers before the court.

He said that the charges against Zuma were struck from the roll by Judge Herbert Msimang in 2006.

"Zuma, in October 2007, requested an opportunity to make representations should his matter be reviewed, the state having previously indicated that it had not just yet decided whether to prosecute him or not."

Kemp said in December last year that acting NDPP Mpshe decided to charge Zuma on corruption relating to the arms deal and his relationship with Shaik.

"No attempt at any compliance with section 179(5)(d) was made nor to invite the representations Zuma asked to make".

Scorpions senior special investigator Johan du Plooy said in his papers that Zuma's challenge to Pikoli's decision was misguided because the question of whether Pikoli's decision was valid had become moot because it was undone when Msimang struck the case off the roll.

"I am advised that (Zuma) is incorrect in contending that either the Pikoli decision or the current decision amounted to a 'review' within the meaning of section 179 (5)(d) of the constitution."

Du Plooy said the use of the word "review" implied that the section was invoked where the NDPP was reversing or overturning a decision taken by a subordinate functionary.

"Each of the decisions in the present matter is that of the NPA, that is, made with the concurrence of the NDPP and the head of the (Scorpions) in each case. Consequently, it was not the case in either the Pikoli decision or the current decision that the NDPP overruled the decision of his subordinate. In the circumstances, the provisions of section 179(5)(d) do not apply," he said,

Du Plooy said on the interpretation put by Zuma, that the NDPP would be required to meet the requirements of section 179 (5)(d) if he reverses his earlier decision, while DPPs who revisit decisions not to prosecute do not have to comply with the section.

With acknowledgements to Ernest Mabuza and Business Day.