French arms firm Thales has argued that former prosecutions boss Shaun Abrahams relied on the incorrect provision in law to authorise the case against the company, which renders the decision unlawful.
Thales and former President Jacob Zuma have launched an application in the Pietermaritzburg High Court for a permanent stay of prosecute.
The case emanates from the controversial arms deal.
The argument on Tuesday morning has centred on the powers of the National Director of Public Prosecutions and the powers in law to institute and conduct prosecutions.
Thales’s Advocate Anton Katz set out the approach to their challenge of Abrahams’s decision.
“Abrahams could have had 10 good reasons, intertwined with unlawful acts, but when he exercises power, and he does, he must have the power and he must know what power he’s exercising. If he doesn’t, what power he’s exercising, it’s an unlawful exercise of power.”
Katz said the respondents were now relying on a section of the NPA Act for Abrahams’s decision.
“We submit that’s wrong as a matter of law. But before you get to what’s wrong or right, they’re not entitled to run on the act because they’re bound by 179.2 relianced by Advocate Abrahams for his decision making power. That’s what he said when he made the decision on the basis of this matter and that is what the respondents are bound by.”