The courts will have to determine whether public representatives accused of corruption and implicated in allegations of state capture will be eligible to have their  defence funded by the taxpayers, the  high court in Pretoria heard on Wednesday.

The DA and the EFF have applied for the reviewing and setting aside of an agreement authorising state funding of former president Jacob Zuma's defence in criminal cases. According to the agreement Zuma signed with the presidency, he is to pay back the money if he is convicted. 

So far, the state has paid between R15m and R32m in legal costs for the former president, and it has said it will continue to fund Zuma’s defence  until the 2008 agreement is reviewed and set aside by a court.

The former president, his son Duduzane, and the controversial Gupta family are at the heart of state-capture allegations that resulted in the establishment of a commission of inquiry by Zuma's successor, President Cyril Ramaphosa.

The DA and the EFF asked the court for a declaratory order that it was illegal to pay legal Zuma’s fees and to order the state attorney to determine how much money was paid in the process and then recover it from Zuma, if needs be through civil court action.

Zuma faces 16 charges of fraud, corruption, money laundering and racketeering stemming from 783 alleged payments to him in relation to the arms deal when he was KwaZulu-Natal MEC of economic affairs and tourism.

Charges were dropped in 2009 and reinstated earlier this year.

The DA’s counsel, Sean Rosenberg, submitted on Wednesday that there was more at stake than merely the issue of Zuma’s legal fees.

He said the issue of in what circumstances government functionaries facing charges of corruption were entitled to legal assistance at the expense of the state “cries out for consideration by this court”.

EFF counsel Tembeka Ngcukaitobi said the court was dealing with “a president who has been enriched at the expense of the nation and the public”, just as in the Nkandla matter. 

Judgment was reserved.