Johannesburg — THE National Prosecuting Authority (NPA) said yesterday it would not oppose the African National Congress's (ANC's) application, as a friend of the court, to join the appeal by its president, Jacob Zuma, to the Constitutional Court .

The appeal concerns the recent judgment of the Supreme Court of Appeal, which held that there was no obligation on the NPA to invite Zuma to make representations before it decided to prosecute him. The effect of this judgment was to reinstate corruption charges against Zuma.

After the judgment, Zuma applied to the Constitutional Court to challenge the decision and the ANC said it would apply to be a friend of the court (amicus curiae). The NPA said it would abide by the court's decision on the ANC's application because the ANC had said it would not lodge any further affidavits and would ask the court for only half an hour to make its argument.

Before applying to be amicus, the ANC had asked Zuma and the NPA for their consent to join as a friend of the court.

Zuma had agreed but the NPA had refused. The ANC consequently applied to Chief Justice Pius Langa.

George Baloyi, deputy director of public prosecutions, said yesterday that the NPA refused consent because it was "generally undesirable for political parties to become involved as amici curiae in criminal proceedings", because "their involvement may politicise the proceedings".

Baloyi also said that the arguments of the ANC were not "materially different to those raised by Mr Zuma". But the ANC said in its application last week that it would be making different arguments to Zuma's.

In the ANC application, the organisation's attorney, Asif Latib, said the ANC agreed with Zuma's interpretation of section 179(5)(d) of the constitution "but arrives at this conclusion using a different and more convincing methodology".

The proper interpretation of section 179(5)(d) is the crux of the case before the Constitutional Court. The section says "the national director of public prosecutions may review a decision to prosecute or not to prosecute after consulting the relevant director of public prosecutions and after taking representations ... from the accused person".

The ANC argues that the interpretation of this section of the constitution by the Supreme Court of Appeal is not "in harmony" with the right to equality in the bill of rights.

Latib said sections 7(1) and 8(1) of the constitution required that the bill of rights be applied to other sections of the constitution. Section 7(1) says the bill of rights is the cornerstone of the constitution and section 8(1) says the bill of rights applies to all law. He said the ANC would dispute the Supreme Court of Appeal's contention that the right to equality is "ousted by other considerations".