Barnabas Xulu, Western Cape Judge President John Hlophe’s long-time attorney, is facing potential imprisonment for multiple acts of contempt of court – related to his firm’s failure to pay back R20m in fees it unlawfully received from the Department of Environment, Forestry & Fisheries, reports legal writer Karyn Maughan for News24.

In a contempt of court application filed against Xulu and his firm, the department asks the Western Cape High Court to order that he be imprisoned, should he fail to comply with an October 2020 order to hand over his Porsche 911 Carrera to the Cape Town Sheriff for safekeeping, until his personal liability for that R20m is determined.

The saga, which has raised serious questions about Hlophe’s conduct in relation to cases involving his attorney, has again starkly illustrated the dysfunction of the Western Cape High Court, writes Maughan.

As apparent from the court papers, not only has Xulu lodged complaints against the department’s lawyers for their conduct in the cases against him, he is also seeking to prevent Judge Owen Rogers – who last year ruled that his firm’s service level agreement and subsequent R20m legal fees settlement agreement with the department was unlawful – from being appointed to the SCA.

The judge also ordered that Xulu must be called upon to explain why he should not be held personally liable for the R20m that was unlawfully paid to his firm, prior to his removal from the matter.

Xulu had sought Rogers’ recusal from the case, largely because of the relatively minor role he played in Deputy Judge President Patricia Goliath’s misconduct complaint against Hlophe.

Rogers was one of 10 judges who refused to share a Bench with Judge Mushtak Parker, after he tried to backtrack on claims he’d made under oath, and to other judges, that Hlophe had attacked him in his chambers.

Rogers last year complained about Xulu’s various attacks on his integrity to the Legal Practice Council, which reportedly told News24 that an investigating committee will consider that complaint on 23 March.

In allegations that are supported by several other judges, Rogers contends Xulu should be investigated for committing ‘conduct bringing the legal profession into disrepute’, ‘abusing court processes to gratuitously disparage, defame and use invective against myself and other judges, and to make reckless and unsubstantiated allegations’ and ‘failing to treat judicial officers with civility and respect’.

In response, Xulu last month laid a gross judicial misconduct complaint against Rogers and 10 other judges with the JSC, in which he argues that the LPC complaint lodged against him was a ‘well-orchestrated’ effort that ‘strikes at the independence and impartiality of the courts’.

Xulu has now used this complaint as a basis to urge the JSC not to allow Rogers to be interviewed for a position at the SCA, where he has served on an acting basis, because he is ‘not a fit and proper person’.

The JSC has yet to respond to that contention.

Importantly, however, notes Maughan, the Department of Environment, Forestry & Fisheries emphasises that Xulu has not sought to appeal Rogers’ decision – with his own lawyers conceding that an appeal of the substance of the Rogers judgment would be ‘dead in the water’.

Despite not actually challenging Rogers’ rulings directly, Xulu has embarked on multiple other legal applications – most of which have been dismissed and some which are pending – to the department’s efforts to get its money back.

To date, Xulu has neither paid back that money or given his Porsche to the sheriff for safekeeping.

The contempt of court application is hard hitting.

‘The conduct of Mr Xulu in avoiding the sheriff cannot be viewed as anything other than a wilful, male fide and a blatant disregard of the orders and process of this honourable court,’ Chesly Elgon Liebenberg, the department’s director of Corporate Legal Support stated in court papers.

According to Liebenberg, Xulu’s efforts to evade the sheriff when he arrived at his home on 11 November 2020, ‘clearly indicated that he was literally running away to avoid personal service and direct inquiries from the sheriff as to the location of the Porsche’.

‘The Porsche has been hidden and Mr Xulu now appears to drive a BMW. Mr Xulu has acted with male fides. A law abiding citizen, more so an officer of the court, who was admittedly aware of the order since 15 October 2020, would have handed over the vehicle and complied, regardless of his whereabouts. Nothing precluded him from doing so’.

When Xulu was ordered to appear before the High Court on 27 November 2020 to explain his failure to hand over his Porsche or file an affidavit explaining that failure, he did neither.

Instead, he sent a letter stating that he was in Johannesburg.

News24 notes the department’s contempt case against Xulu is due to be heard on 19 March.

Full News24 report (subscription needed)