DEFENCE INTRODUCES CONSTITUTIONAL ARGUMENT IN CASE

The application by ANC president Jacob Zuma to have graft charges against him dropped did not mean he was innocent, the Pietermaritzburg high court has heard.

The application by ANC president Jacob Zuma to have graft charges against him dropped did not mean he was innocent, the Pietermaritzburg high court has heard.

State advocate Wim Trengove, SC, argued yesterday that the bid to have the decision to prosecute Zuma declared unlawful was "with respect, besides the point".

Trengove said a decision to prosecute set off a series of events, including the accused's right to defend himself.

Disputes over the decision to prosecute should be decided in the criminal trial and not in a separate action, he told Judge Chris Nicholson.

"The decision to prosecute is merely a decision to trigger a hearing," said Trengove.

He said the application by Zuma says "I should not be put on trial because the decision was unfair".

Zuma faces charges of racketeering, corruption, money laundering and fraud.

He claims that the decision to prosecute him was a reversal of a decision taken by former national director of public prosecutions Bulelani Ngcuka, who announced in August 2003 that the NDPP would not prosecute him (Zuma) because it did not believe it had a "winnable case".

Zuma's lawyer, Kemp J Kemp, SC, yesterday presented arguments around the interpretation of section 179(5)(d) of the Constitution, which states that the NDPP may review a decision to prosecute or not to prosecute after consulting the relevant director of public prosecutions, and after taking representations within a period specified by the NDPP from the accused person, the complainant or any other person or party whom the national director considers relevant.

Kemp said if the section did not apply to the NDPP, it would allow the state to change decisions constantly without representations being made.

The hearing continues today.- Sapa

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