Pietermaritzburg High Court Judge Chris Nicholson delivered a groundbreaking judgment on the application by ANC president Jacob Zuma to have a decision by the National Prosecuting Authority to prosecute him on charges of corruption, racketeering, money laundering and fraud declared invalid.

Zuma had argued that the NPA followed incorrect procedure in recharging him without allowing him to make "representations" to it.

Ordinarily, in criminal matters before courts of law, not every suspect or accused person is entitled to make representations to the prosecuting authorities before they are charged.

This is a special right under section 179 (5) (d) of the constitution read with section 22 (2) (c) of the National Prosecuting Authority Act.

It applies only in cases where the prosecuting authority at first made a decision not to charge a person suspected of having committed a criminal offence. In Zuma's case, the former national director of public prosecutions (NDPP), Bulelani Ngcuka, made a decision not to charge him even though, in Ngcuka's words, there was a prima facie case (evidence that on the face of it is sufficient for a successful prosecution).

This decision, announced at a press conference in August 2003, sparked controversy because where there is prima facie evidence the accused or suspect is ordinarily charged and prosecuted.

On the other hand, the NDPP can exercise his or her discretion when deciding whether to prosecute or not. The NDPP also has the power to review such a decision subject to the condition pointed out above.

Indeed, providing an accused in Zuma's circumstances with the opportunity to make representations is an important administrative justice issue with direct consequences for criminal justice. Judge Nicholson appears to have been within the law in affirming this, even though the NPA has indicated that it will appeal on the point. Perhaps a different interpretation is possible.

One of the faults with Judge Nicholson's judgment is that he made it appear as if it was mandatory that Zuma and Schabir Shaik should have been charged and tried together.

He does not seem to appreciate the constitutional rights of the NPA to make such decisions.

He attributes political machinations or strategy on why this did not happen without reference to any evidence tested in court.

He accepts Zuma's allegations that he was not charged with Shaik because of political rivalry between him and President Thabo Mbeki. The judge even implies that there is further proof of alleged scheming in the decision to replace Zuma with Phumzile Mlambo-Ngcuka as deputy president, as she is married to Ngcuka.

Since Ngcuka's departure and during the tenure of his successor, Vusi Pikoli, the NPA maintained that it was reviewing the decision not to charge Zuma and would proceed to charge him once it had gathered additional evidence.

A decision to prosecute Zuma was made in 2005 and again in 2007.

All along, Zuma has tried in the national courts (high courts, the Supreme Court of Appeal and the Constitutional Court) and in the Mauritius Supreme Court to prevent some documentary information that may contain evidence from being released. He was mostly unsuccessful in these attempts.

But he was successful in obtaining an order for a stay (read suspension) of prosecution in the Pietermaritzburg High Court.

Another troubling aspect of Judge Nicholson's judgment is the gratuitous journey into the arms deal and his opinion that the president should have appointed a commission of inquiry to investigate the matter.

It is not clear why he believes such a commission would be more successful in unravelling the truth than the Public Protector, the NPA and a committee of parliament had been in their combined investigations.

To the best of my knowledge, not all the charges against Zuma are linked to the arms deal.

His supporters in the alliance have called for a blanket amnesty for all those involved in the arms deal. Alternatively, they have threatened to spill the beans. So far there has been nothing of substance, though allegations and claims are regularly recycled.

Judge Nicholson also tells us that Mbeki's decision to run for a third term as ANC president in 2007 "was controversial and not in accordance with the Westminster system we espouse in this country". Besides doubts as to how the honourable judge understands the "Westminster system" and how we have committed ourselves to follow it, these remarks seem to refer to the pre-Polokwane "two centres of power" debate within the ANC. How is this relevant to the issues that were before the court?

These are good reasons why aspects of Judge Nicholson's judgment should be appealed or reviewed.

One of these is the judge's views on interference in the NPA. The ANC leadership have latched on to these, using them as a "judicial finding" to remove Mbeki as president just a few months before the end of his tenure.

It is critical in affirming a commitment to the rule of law that no doubts are created that may suggest the tactics of intimidation used against the courts by some militant factions within the ANC and its alliance partners may be producing the desired results.

Unfortunately, from a legal point of view, this judgment may stand as a very poor judicial precedent.

Professor Shadrack Gutto is director and chairperson of the Centre for African Renaissance Studies at Unisa; Professor Extraordinaire, Faculty of Humanities, Tshwane University of Technology; and non-executive chairperson of Maluleke Seriti Makume Matlala Inc (Attorneys) in Pretoria

With acknowledgements to Shadrack Gutto and The Star.