President Thabo Mbeki is fighting back. Less than 24 hours after he publicly announced his resignation, he has asked South Africa's highest court for the right to urgently challenge the ruling that quashed ANC president Jacob Zuma's prosecution and led to his political downfall.

In papers filed at the Constitutional Court and served on Zuma and acting prosecuting head Mokotedi Mpshe on Monday, Mbeki states: "It is unfair and unjust for me to be judged and condemned on the basis of the findings in the Zuma matter. The interests of justice, in my respectful submission, would demand that the matter be rectified."

He also revealed that his cabinet had decided to seek to appeal against Judge Chris Nicholson's findings that there was "merit" to Zuma's belief that his prosecution was politically driven.

Mbeki claims that Judge Nicholson's multiple and "vexatious, scandalous and prejudicial" findings against him had effectively cost him his job, and damaged his good name and reputation, without the judge, or "most importantly the general public", ever hearing his side of the story.

This, Mbeki says, is a clear violation of his constitutional rights and those of current and former justice ministers Brigitte Mabandla and Penuell Maduna respectively, who Judge Nicholson suggested had improperly interfered with the National Prosecuting Authority's work.

"These adverse finding have led to my being recalled by my political party, the ANC - a request I have acceded to as a committed and loyal member of the ANC for the past 52 years, much as the untested allegations relied on by (Judge Nicholson) have already caused irreparable harm to my integrity and to the standing of the office I occupy... I fear that if not rectified, I might suffer further prejudice," he said.

He added that there was a "real possibility that persons with malicious intent could act" on the judge's ruling to the detriment of the Presidency, his cabinet and him personally.

"Unless the errors in the judgment are rectified immediately by means of a judgment, I will continue to suffer and may even suffer great harm," he said.

Mbeki, who has gone to the Constitutional Court in both his personal and official capacity, has asked that Judge Nicholson's findings be declared unconstitutional and set aside.

"I deny all the allegations against me and also dispute the truth and correctness of the 'findings...The findings do not only suggest that I have acted improperly or without integrity, all of which are injurious to my good name, reputation and my right to human dignity... but also go further in that they in effect say that I have failed to fulfil the constitutional obligation to uphold and respect the constitution as the supreme law of the Republic."

Pointing out that Zuma's application before the Pietermaritzburg High Court was mainly concerned with the NPA's failure to seek his representations before recharging him, Mbeki said it was "not necessary" for the judge "to make the findings I am appealing against".

If Judge Nicholson was of the view that "the serious and defamatory allegations pertaining to me" were relevant to Zuma's application, Mbeki argued, the judge should have asked for him to be formally cited as a party in the case.

Mbeki is disputing the following findings made by Judge Nicholson:

  • That his decision to dismiss Zuma was "unfair and unjust".

  • That there was a "political struggle or rivalry" between himself and Zuma that impacted on the judge's ruling on Zuma's application.

  • That his decision to stand for re-election as party president at the Polokwane conference was "controversial and not in accordance with the Westminster system we espouse in this country".

  • That former prosecuting head Bulelani Ngcuka's decision not to prosecute Zuma was politically driven.

  • That the various meetings between the director-general in the Presidency, Frank Chikane, and the NPA regarding the arms deal must have related to the Presidency's complicity in the charges against Zuma.

  • That there was political interference at the time that Mpshe decided to reinstitute the prosecution against Zuma, and it seemed that "the issuing of the warrants against (National Police Commissioner Jackie) Selebi was not palatable to the president, but the decision to prosecute (Zuma) was".

  • That the actions taken by Maduna and Mabandla, in interfering with the prosecutorial independence of the NPA, are the responsibility of the president and the entire cabinet.

  • That there was a distressing pattern in the handling of Zuma's prosecution, indicative of political interference or influence.

    The Star has learnt that Mbeki began preparing his legal challenge last week, prior to his being recalled as president. The application has been prepared by the Johannesburg State Attorney's office.

    Arguing that he needed to challenge Judge Nicholson's findings against him because the NPA was unlikely to do so, Mbeki asked that Zuma and Mpshe be hit with the legal costs of his application, should they oppose it.

    Asked whether and how Mbeki's resignation would influence the NPA's decision to appeal against Judge Nicholson's ruling, NPA spokesperson Tlali Tlali said Monday: "The NPA has yet to come across considerations urgent enough to warrant abandonment of a pending appeal.

    "The intention to appeal the Nicholson judgment has accordingly not changed."

    Zuma's attorney, Michael Hulley, declined to comment on Mbeki's application.