Proceedings have started in the Supreme Court of Appeal (SCA) in Bloemfontein in the latest chapter of the legal battle between President Jacob Zuma and the National Prosecuting Authority (NPA) on the one side, and the Democratic Alliance (DA) on the other.

Zuma and the NPA is asking for leave to appeal a judgement of the Gauteng North High Court last year, which ruled in favour of the DA, setting aside the 2009 decision by the NPA’s former Director of Public Prosecution Mokotedi Mpshe to discontinue the corruption case against Zuma, on the basis of irrationality. The application is being heard by a full bench of appeal judges. Justices Navsa, Boshelo, Tshiqi, Cachalia and Leach have set aside two days to hear submissions.

The NPA’s submission got off to a rough start when Advocate Hilton Epstein was castigated by the court for the late filing of additional heads of argument outside of the main record.

Justice Navsa called the state of the record “chaotic”, asking an apology from both the NPA and President Zuma’s legal teams.

The first issue addressed was whether Mpshe was authorised to withdraw charges against Zuma, as according to existing case law, a Director of Public Prosecution can not review his own earlier decision.

Justice Cachalia pointed out that the NPA filed contradictory affidavits around this, first saying that the decision was a corporate one taken by both Mpshe and Leonard McCarthy, former head of Special Operations, and later saying that it was taken by McCarthy alone.

The NPA is submitting that McCarthy had deliberately postponed the serving of the indictment on Zuma until after the ruling African National Congress’s Polokwane conference in 2007, in order to advance former President Thabo Mbeki’s leadership prospects. And that this was the main reason motivating Mpshe to rationally halt Zuma’s prosecution.

Justice Cachalia pointed out to Epstein that, according to a previous judgement by the Supreme Court of Appeal, the motive of the prosecutor was irrelevant.

“How can you then argue that the prosecution was contaminated, if the only concern was around the date of the indictment? I have great difficulty in accepting this,” Cachalia went on to say.

Epstein explained that there was no contention that a strong case existed against Zuma. “But the contention is that the conduct by the prosecutor was so manipulative and aimed at influencing matters as serious as who should lead the country. That abuse cannot be tolerated.”

Justice Navsa pointed out that there was no evidence of Mpshe weighing up different considerations before making his decision to halt prosecution.

Justice Cachalia put it even more strongly: “The abuse of power may well warrant a prosecutor to abstain from prosecuting. But in this case he (Mpshe) invokes an abuse of process. He either had no idea what he was doing, or he was not applying his mind. With respect, those reasons are nonsense.”

Epstein explained that Mpshe was simply protecting the integrity of the prosecution. And that it was up to the prosecuting authority to decide if one of its member’s conduct was grievous enough to warrant the withdrawal of charges.

The hearing continues.