If the High Court in Pretoria finds in favour of the Democratic Alliance (DA) in its bid to overturn the decision to drop corruption charges against President Jacob Zuma, the matter would likely have to go back to the National Prosecuting Authority (NPA).

It would be inappropriate for the court to dictate to the NPA how to proceed if the decision was set aside, Sean Rosenberg, for the DA, argued.

The court on Thursday reserved judgment in the matter, heard before Judges Aubrey Ledwaba, Billy Mothle and Cynthia Pretorius.

"Withdrawing a case such as this at the eleventh hour could and has done grave damage to the institution of the National Prosecuting Authority in the minds of the properly informed public,” Rosenberg said.

It was an impulsive, emotional decision, the reasons for which had to be "put together" later.

The NPA was not allowed to come to court and produce further and better reasons when its original reasons were attacked, he submitted.

The DA wanted the court to declare as irrational and unlawful the decision in April 2009 by former acting National Director of Public Prosecutions Mokotedi Mpshe to stop the prosecution of Zuma on over 700 corruption and fraud charges.

The NPA and Zuma opposed the application, arguing that the decision was rational because of serious political interference with the prosecutorial process, to favour former President Thabo Mbeki in his bid to be re-elected ANC president at the party’s 2007 Polokwane conference. Mbeki lost to Zuma.

Zuma was sworn in as South Africa’s president in May 2009.

The charges against Zuma stemmed from a bribe he allegedly received from a French arms company in exchange for influencing the awarding of contracts in the country’s multi-billion rand arms deal.

Mpshe's decision was partially based on the so-called "spy tapes", recordings of conversations between former Scorpions head Leonard McCarthy and former NPA head Bulelani Ngcuka about whether to serve the indictment on Zuma before or after the ANC's Polokwane conference.

Rosenberg argued that the decision to drop the charges at the eleventh hour after years of preparation made no sense, especially if one had regard for the policy consideration that serious crimes had to be prosecuted.

He repeated his argument that Mpshe's decision was premature, impulsive and irrational and that McCarthy's manipulation of the timing of the indictment was inconsequential.

"This court must and can look at those tapes to see if the facts are as Mpshe concluded they were. Was he perhaps making his decision on an apprehension of the facts that was incorrect?" he asked.

Rosenberg argued that the recordings did not reveal such a "nasty and awful picture" as Deputy National Director of Public Prosecutions Willie Hofmeyr seemed to suggest. They were "limited in their impact".

There were "practical and good reasons" for the delay in serving the indictment on Zuma, given the stage of readiness of the process at that stage, he said.

Rosenberg argued that Mpshe may have been "shocked and disappointed" on listening to the recordings.

However, it would have made "eminent good sense" to investigate further and get responses from the persons implicated before making such a crucial decision.

"Given the nature of the decision and the uncertainty about the facts, it may have been appropriate to permit the matter to be dealt with judicially. Particularly if regard is had to the question of public perception."

News24.com