Former NPA boss Bulelani Ngcuka’s decision not to prosecute ANC president Jacob Zuma together with his financial adviser Schabir Shaik, did not amount to a decision to never prosecute Zuma.

This was advocate Wim Trengove’s response to a question by appeal Judge Louis Harms whether the National Prosecution Authority (NPA) ever took a decision to never prosecute Zuma.

Trengove, acting for the NPA, argued on Friday morning that Judge Chris Nicholson was wrong to find Zuma should have been given an opportunity to make representations to the NPA before it decided to recharge him on corruption charges.

The constitutional section in question makes provision for the National Director of Public Prosecutions (NDPP) to ask for representations when he overturns a decision by a provincial director of public prosecutions (DPP).

But, according to Trengove, this was not the case in the Zuma matter. A DPP never decided to charge Zuma -- they were always decisions taken at NDPP level, and therefore the contentious section did not apply.

“Why would the Constitution want to restrict the NDPP in the reversal of his own decision?” Trengove asked, disputing Nicholson’s inference that Ngcuka’s successors should have asked for Zuma’s input before recharging him.

Trengove also stressed what Ngcuka said at the now infamous 2002 press conference where he announced Zuma would not be charged with Shaik.

“Mr Ngcuka said they decided not to prosecute Zuma, but that they will revisit the decision in future if new evidence comes to light.”

To this, Harms responded: “What was Mr Ngucka’s decision? Was there ever a decision never to prosecute Mr Zuma?”

"No", replied Trengove, saying the only decision Ngcuka took was not to prosecute Zuma together with Shaik.

Harms continued: “Then how is section 179 [that requires the NDPP to invite representations] relevant to the current indictment?”

Trengove confirmed that the current indictment against Zuma -- made up of 16 charges -- goes much further than the two corruption charges against Shaik.

Judge Ian Farlam said at best, Zuma could ask for certain charges in the indictment against him to be struck out. This would be the two corruption charges Ngcuka decided not to prosecute him with in 2002.

The 14 other charges were only added after raids on Zuma’s properties in 2005.

Right to be heard

Zuma believes he had a legitimate right to be heard before the NDPP charged him last year on racketeering, money-laundering, corruption and fraud relating to a multibillion-rand government arms deal.

Zuma was charged in 2005, but that case was struck from the roll in 2006. He was recharged in December 2007 and on September 12 was vindicated by Nicholson.

But it was Nicholson's judgement that set the cat among the pigeons.

Within days, then-president Thabo Mbeki had lost his job -- which he contends was because of Nicholson's inferences of political meddling in the charging of Zuma.

Zuma's team is defending the Nicholson judgement and holds that he did indeed consider whether the facts and circumstances testified to [of political influences] displayed some merit.

"It [the judgement] carefully considered the circumstances and decided that there appeared to be merit in the respondent's [Zuma's] averments of political interference in his prosecution."

Zuma also argues that the NDPP, in terms of Section 179(5)(d) of the Constitution, was obliged to offer him an opportunity to make representations.

Mbeki wants to be allowed to challenge the Nicholson's inferences of political interference against him, which he claims led the ANC to recall him from his position as president of the country.

With acknowledgements to Adriaan Basson and Mail and Guardian.