The supreme court of appeal opened the way for the reinstatement of bribery and corruption charges against President Jacob Zuma by upholding a lower court's ruling that a decision by prosecutors to drop them was "irrational".
This overturned the NPA's original decision to drop almost 800 fraud and corruption charges against the president.
This means the NPA should immediately reinstate charges of fraud and corruption against Zuma.
Charges were first brought against Zuma in 2005 but dropped by prosecutors in 2009.
The SCA made the decision on Friday which could see Zuma facing the 783 counts on 18 charges which were dropped in 2009. Legal representatives for the NPA and Zuma tried to persuade the court to allow the appeal.
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Justice Eric Leach granted Zuma and the NPA's leave to appeal, but the appeal was dismissed with costs.
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.
The SCA's decision was not a surprise after counsel for the NPA and Zuma conceded that Mpshe's decision was taken under the wrong section of the Constitution and that - in line with an earlier judgment of the Constitutional Court, this invalidated the decision.
At the hearing, Kemp said "what then must happen is that the representations would have to be considered by the NPA, because they have never been".
Advocate Hilton Epstein, SC, for the NPA, faced tough questions at the time from the visibly unimpressed judges, who pressed him on who had decided on whether Zuma should be prosecuted or not.