Judge Chris Nicholson will preside over African National Congress president Jacob Zuma's application to have the decision to prosecute him declared unlawful, the KwaZulu-Natal Judge President Vuka Tshabalala said on Monday.

Zuma's application will be heard in the Pietermaritzburg High Court on Monday and Tuesday next week.

Speculation over who would be appointed to hear the case has been rife with the Mercury newspaper reporting on Monday morning that Tshabalala had appointed Nicholson, a former human rights lawyer.

Tshabalala confirmed Nicholson's appointment but would not be drawn on his reasons for appointing him.

"Should I have to disclose why I have appointed him? I don't think so," he said.

Tshabalala said that if Zuma was unsuccessful in his applications and the a criminal trial got underway, Nicholson would also hear that trial.

Case unconstitutional?

Meanwhile, Zuma's legal team said on Monday in the heads of argument that the National Prosecuting Authority's case against Zuma "smacks of an intent to prosecute Zuma in defiance of the Constitution".

Heads of argument are prepared by legal teams to set out their arguments in a clear and convincing way. Heads of argument generally indicate the name and number of the case, a description of the parties, the background facts, the legal questions that arise, the applicable law and a conclusion.

The State is expected to file its heads of argument on Wednesday.

According to Zuma's legal team, the former head of the National Prosecuting Authority Bulelani Ngcuka took a decision in August 2003 not to prosecute Zuma.

At the time Ngcuka announced Zuma would not be prosecuted despite prima facie evidence linking him to wrongdoing in the government's multi-billion rand arms acquisition deal.

This decision, say Zuma's legal team, has never been reversed by Ngcuka's successors Vusi Pikoli and Mokotedi Mpshe.

They are also arguing that if it was, he should have been advised of it and allowed to make representations in accordance with the provisions of the constitution.

"Section 179(5) clearly embodies constitutional protections against an unfair, over-hasty, arbitrary or incorrect change of a decision to prosecute or not," they claim.

"It is clear that the decision of August 2003 was a thoroughly considered decision announced to the public with the awareness that greater publicity would attach to it (far greater than any Government Gazette). The Applicant (Zuma) himself was privately informed of the decision shortly before the public announcement."

Zuma's legal team argue that the only reason to have the decision to charge him declared unlawful, is because it violates the constitution.

"This application was never intended to deal with the rationality, reasonableness, validity or any other reason which may render the decisions to prosecute and the consequent bringing of charges invalid."

In concluding their head of argument, Zuma's team say: "Indeed, the relief sought by the respondent (the State) is astounding and smacks of an intent to prosecute Zuma in defiance of the Constitution... "

Sapa