He also conceded that a decision to withdraw charges that was based exclusively on the timing of the indictment was irrational.
On Friday morning the Supreme Court of Appeal in Bloemfontein dismissed Zuma's and the National Prosecuting Authority's appeal in what became known as the "spy tapes" case.
Earlier on Friday morning SCA Justice Eric Leach upheld the High Court's decision to withdraw 783 charges of corruption and fraud against Zuma was irrational, saying that the decision to terminate the decision not to prosecute cannot be faulted.
That would leave the decision in the hands of NPA boss Shaun Abrahams‚ who is seen as a Zuma ally.
Kemp said that if the SCA finds that Mpshe did not make a rational decision, then someone would have to make a rational decision on that basis.
Legal representatives for the NPA and Zuma tried to persuade the court to allow the appeal. "It is hard to understand why the present regime at the NPA considered that the decision to terminate prosecution could be defended".
Either of the two may yet approach the Constitutional Court or they may decide to drop the the appeal route.
Advocate Kemp J Kemp, counsel for Zuma, made the same concession.
The long-standing matter was brought by the DA.
Zuma's prosecution was discontinued by Mpshe - based on the "spy tapes".
Mpshe's decision was immediately challenged by the Democratic Alliance (DA) in a case that dragged on for 8 years.
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