President Jacob Zuma. Picture: REUTERS
President Jacob Zuma. Picture: REUTERS

Former president Jacob Zuma is expected to use an ongoing funding dispute in the murder prosecution of apartheid-era policemen to make the case for delaying his trial on corruption charges.

Attorney Michael Hulley has confirmed that Zuma will ask that the case against him be postponed until there is legal certainty over whether or not he remains entitled to state-funded representation.

He warned that the corruption trial could be delayed for years as a result of the looming court battle over whether or not the state will continue to fund his legal fees.

Zuma’s lawyers had previously told the Durban High Court that they would file for a review of the decision by National Director of Public Prosecutions Shaun Abrahams to proceed with the case against the former president by mid-May.

But Hulley has now said that this review will not happen any time soon because of uncertainty over who exactly will pay for it.

Hulley maintained that this meant Zuma would very likely not go on trial in November — which is when prosecutor Billy Downer said the state would be ready to proceed with the case — insisting Zuma could face the charges against him only once he knew whether and how his representation would be funded.

The state has yet to indicate whether it would agree to‚ or oppose‚ this request for a postponement of Zuma’s trial.

Zuma’s funding crisis has been driven by two separate challenges to the continued state sponsorship of his corruption trial legal battles.

The DA is challenging a 2006 "deal" between Zuma and then-president Thabo Mbeki to fund the costs of his defence‚ while the EFF has gone further by seeking to force the lawyers who were paid as part of that deal to pay back the money.

The EFF application has arguably sent a clear message to any lawyer who may be considering taking on Zuma’s case: if your fees are being paid by the state‚ you may very well have to pay them back.

Hulley has previously indicated that‚ in addition to challenging the legality and rationality of Abrahams’s decision to continue with the prosecution against him‚ Zuma would also consider seeking a permanent stay of his prosecution.

Those legal battles could take up to a decade to finalise.

Now the funding of what many legal pundits have described as Zuma’s second "Stalingrad" campaign stands in jeopardy.

But that funding dispute itself may also result in the long trial delay that opposition parties were fighting to avoid. And there is legal precedent for such a delay.

Last week‚ Polokwane mayor Thembisile Nkadimeng joined the apartheid policemen accused of murdering her sister Nokuthula Simelane in seeking to compel the police to pay the costs of their defence.

Simelane was a 23-year-old underground ANC operative when she was abducted by members of the security police in September 1983 and brutally tortured. She was never seen alive again.

In court papers filed in support of the police officers receiving state funding‚ advocate Dumisa Ntsebeza SC‚ former head of the Truth and Reconciliation Commission investigative unit‚ said the police suggestion that the former security policemen "were engaged in a private frolic of their own is not only an absurd proposition‚ it is an expedient and wholly false claim".

"They were mere junior officers acting at the behest of a powerful and brutal organisation which specifically authorised and condoned their actions‚" Ntsebeza said.

The case against the former police officers accused of Simelane’s murder was postponed pending the outcome of the funding dispute.

Hulley has confirmed that Zuma will use the apartheid-era case to argue there is clear precedent justifying the postponement of his trial.

Constitutional law expert Phephelaphi Dube is not convinced, though.

"The position taken by former president Zuma appears untenable and suggests‚ yet again‚ that this is a deliberate tactic to stall the legal process to allow him to gain some kind of advantage — a practice upon which the courts have frowned‚" she says.

"In any event‚ the principle of equality before the law demands that he be treated in a similar manner to other accused persons and not accorded special considerations regardless of his position as a former head of state."

Criminal law expert James Grant‚ however‚ holds a different view‚ based on the serious implications for the former president if his funding is withdrawn.

"Zuma is entitled to have a court determine whether the decision to withdraw funding is lawful. A court may grant him time for this to be determined‚ taking into account‚ on the one hand‚ the serious impact for Zuma if he is not funded‚ but also the prospects of him having the decision to withdraw his funding reversed — which are arguably remote‚" he says.

He says there is a "desperate need" for clarity on who is entitled to funding.

"If there are no bright lines determining who is and isn’t entitled to such funding‚ we need guidance on what the relevant considerations are."

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