Counsel for Judge President John Hlophe's attorney Barnabas Xulu has vehemently denied he had employed ‘Stalingrad tactics’ to avoid paying back R20m in legal fees his firm was found to have unlawfully received from the state, reports legal writer Karyn Maughan for News24.

‘Everyone just thinks that when you litigate for your rights, you are engaged in some Stalingrad process,’ Advocate Thabani Masuku argued on Friday, in response to the Department of Environment, Forestry & Fisheries' contempt of court application against the attorney for failing to comply with six court orders linked to the fees dispute.

‘It's a word that’s becoming abused by lawyers to victimise those that are seeking to assert their own rights and in this case it should absolutely find no application whatsoever,’ he added, after slamming the contempt case against Xulu as ‘oppressive’ and an ‘embarrassment’.

The department has previously argued that Xulu had adopted a ‘Stalingrad’ approach to the litigation brought against him – a term first used by former President Jacob Zuma’s late Advocate Kemp J Kemp to describe his legal response to the state’s corruption case against him – to avoid paying back the money owed by his firm.

It contends that it was forced to pursue Xulu for contempt of court, after he repeatedly and without explanation failed to comply with the rulings given against him.

The department has also asked that Xulu face a suspended sentence for defying a ruling that he hand over his Porsche 911 Carrera to the sheriff until his personal liability for the R20m has been decided.

Moegamat Abader, the department’s acting DG, last year successfully argued that Xulu's assets should be frozen because of the way in which he had ‘simply dissipated – and appropriated – funds’ from his law firm's bank accounts without regard for its debts and obligations or the court orders made against it. Xulu is seeking a rescission of that judgment.

On the eve of the department’s contempt of court application, Xulu also lodged a petition in the SCA, in an attempt to challenge Western Cape High Court Judge Owen Rogers’ January 2020 ruling that his firm’s service level agreement and subsequent R20m legal fees settlement agreement with the department were unlawful.

Rogers ordered Xulu’s firm to pay back the R20m. He also ruled that Xulu must be called upon to explain why he should not be held personally liable for that money. That case is yet to be heard.

Masuku argues that, because Xulu had launched two new legal challenges linked to his firm’s fees dispute with the department after the contempt case against him was lodged, he cannot be found to have violated the court orders issued against him willfully and in bad faith.

He said the department’s contempt case against Xulu was ‘meritless’.

Masuku argued: ‘They want his car because they want him to pay money that they got from a judgment that is under appeal. That’s wrong.’

Maughan’s News24 report notes Masuku on Friday told Judge Mas-Udah Pangarker, who is deciding the department’s contempt case against Xulu, that she did not have to decide whether his recently launched legal challenges were ‘half-baked or full-baked’ when she ruled on whether he was guilty.

As soon as Xulu filed his legal challenges to the rulings that he was accused of defying, Masuku argued, ‘reasonable doubt’ about his guilt was created.

‘This (contempt) application is simply an abuse of court,' Masuku stated, according to the News24 report.

While he contended that the department should be hit with a punitive costs order as punishment for its ‘abusive’ contempt of court application, its Advocate Nazreen Bawa said there was ‘no basis’ for such an order. She stressed that the department was seeking a suspended sentence against Xulu in an effort to get him to hand over his Porsche.

‘We can’t get him to comply on other orders. He has already spent the R3.4m,’ Bawa stated, in reference to Xulu’s failure to refund the money he admitted his firm had been mistakenly paid by the department.

The advocate further pointed out that Xulu had filed his petition to appeal Rogers’ ruling the day before his contempt case was due to be argued and questioned whether such last-minute legal action was a valid defence against the contempt case against him – given his repeated failures to comply with the court orders given against him.

Full News24 report