National Prosecuting Authority (NPA) boss Shaun Abrahams' refusal to await the outcome of a Constitutional Court case - that could impact his job - before announcing a decision on the prosecution of former president Jacob Zuma has been described as "deeply regrettable".
This was the view of the Council for the Advancement of the South African Constitution (Casac) in its heads of arguments before the Constitutional Court.
"Despite Casac's repeated requests for Mr Abrahams to await the completion of this court's processes, he has refused. It is thus critical that an urgent ruling of this court is obtained," the council said.
Casac filed an urgent application last week to interdict Abrahams from announcing whether Zuma will be prosecuted, pending a Constitutional Court ruling on an appeal in the case.
The possible charges Zuma could face for the 2009 'Spy Tapes' saga include fraud, corruption and racketeering.
Zuma had to make representations on why charges should be dropped after a Supreme Court of Appeal ruling dismissed the former president's and NPA's applications to appeal a ruling by the North Gauteng High court in Pretoria.
That court ruled that the dropping of the corruption charges against him by then NPA boss Mokotedi Mpshe was "irrational".
Mpshe dropped the charges, based on the so-called 'Spy Tapes', which were presented to him by Zuma's legal team.
The tapes were made up of recordings of telephone conversations between then Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka, which Zuma's legal team claimed showed political interference in the decision to charge him.
Casac argues that Abrahams' decision regarding the charges would be final unless and until a court sets it aside on review.
"Even if this court finds the next day that Mr Abrahams was unlawfully appointed and must be replaced, and that he should not take a decision concerning Mr Zuma's prosecution, it will be too late."
Casac previously said, if Abrahams takes a decision on the prosecution of Zuma, "there will be reasonable perception that his decision was biased".
Call to postpone announcement
Lawson Naidoo said Casac had repeatedly asked Abrahams to postpone the announcement, and he had refused.
"He has only given an undertaking that he will afford Casac two weeks' notice before he announces a decision."
"That is precisely what this application is – it seeks to regulate an incidental matter that has arisen as a result of the timing of the litigation process, and Mr Abrahams' refusal to delay his decision," Casac said.
Casac explained that the application was not a substantive application that sought to declare and determine rights, but an incidental one to the main proceedings.
Relief seeks to delay announcement
"The relief sought in this application merely postpones the announcement of a decision with regard to the prosecution of former president Jacob Gedleyihlekisa Zuma, until this court hands down its judgment."
But in his answering affidavit filed in the Constitutional Court on Friday, Abrahams said he was ready to announce his decision on whether Zuma should be prosecuted.
"At the outset, I must emphasise that I stand ready and willing to announce my decision.
"I take strong exception to any suggestion that I lack the requisite independence," he argued.
"I view any attempt to restrain the decision-making powers vested in my office by the Constitution and the legislation thereunder, as itself a serious threat to the institutional independence of the National Prosecuting Authority."
He said if it was Casac's concern that the decision regarding Zuma would be announced before the Constitutional court handed down its judgment, they should have immediately sought an interdict instead of soliciting and accepting the two weeks' notice period.
Abrahams said Casac never responded to the letter in February.
"Casac fails to appreciate that, given the highly charged nature of the matter, there is of course a risk that there will be a perception of bias irrespective of who is it that ultimately makes a decision," Abrahams said.
He said, if President Cyril Ramaphosa appoints a new National Director of Public Prosecutions, who decided to proceed with the charges, "a significant sector of the public will doubtless suspect that the new president has designated my successor with the view to settling political scores".
On December 15, Gauteng Judge President Dunstan Mlambo ruled that Abrahams' appointment was questionable.
The court gave Ramaphosa, who was then deputy president, two months to appoint a new head of the NPA, after it declared the post vacant.
Zuma and the NPA appealed the ruling. However, following his election as president of the country, Ramaphosa withdrew the president's appeal.
The matter was heard in the Constitutional Court on February 28.
Judgment was reserved.