Even if the state is allowed to appeal in the Roodefontein case, there is no chance that former Western Cape premier Pieter Marais will be found guilty of corruption, his advocate said on Friday.

Senior counsel Craig Webster was arguing against an application by the state that, if successful, will open the way for it to appeal against Marais' acquittal by a regional court magistrate.

Because the magistrate, Andre le Grange, is now a Cape judge, the application was heard by judges Herbert Msimang, from KwaZulu-Natal, and Ferdie Preller, from Pretoria.

Marais was found not guilty on two charges of corruption related to donations made to the New National Party, of which he was then provincial leader, by the developer of Plettenberg Bay's Roodefontein golf estate.

His co-accused, former planning MEC David Malatsi, was convicted on one count of corruption, and is on bail after being given leave to appeal his five year jail sentence.

'Statement of case'

Following the 2006 verdict, prosecutors asked Le Grange for a formal "statement of case" listing the points of law that he had considered in coming to his decision.

The state is not allowed to appeal issues of fact in judgements, only points of law.

Le Grange however declined to furnish a statement, saying his findings were based on fact only.

The state is now seeking an order "reviewing, correcting and setting aside" Le Grange's refusal.

Webster told the judges on Friday that prosecutors had charged and tried Marais under the incorrect section of the Corruption Act, and would not be able to remedy this in an appeal.

"Even on the best possible reading of the evidence in favour of the prosecution, [Marais] cannot be convicted," he said.

He also said that bar one, all the so-called points of law raised by the state were actually issues of fact.

Ashton Schippers, for the state, said Le Grange had erred by not applying the doctrine of common purpose.

'Confidential' statement?

The judges should also consider whether Le Grange had been correct in law to refuse to admit a "confidential" statement Malatsi had made to the Scorpions, and to reject the evidence of Ingrid Coetzee, a key official in Malatsi's department.

Schippers said the sequence of events in the affair showed that provincial approval of the Roodefontein development "was procured by corruption".

"It shows that the decision was wrong," interjected Preller.

"The only reasonable inference to be drawn from the proven facts is that there was common purpose," said Schippers.

Le Grange has indicated he would abide by the court's finding, while Malatsi, who is currently facing charges of possession of a suspected stolen car in Mpumalanga, is not opposing the application.

The judges reserved their decision.