COMMENT: Barnabas Xulu strongly denies that he was paid anywhere near the R27 million that fisheries deputy director general Siphokazi Ndudane’s charge sheet claims.
He showed City Press figures from invoices amounting to R12.2 million which he was paid by the Department of Agriculture, Forestry and Fisheries (Daff).
He added that when VAT of R2.4 million was paid on this amount, it would reduce the money he was paid to less than R10 million.
Xulu also strongly denied that he was connected to former President Jacob Zuma, arguing that he had been paid for his professional services in the establishment of the Friends of Jacob Zuma Trust, as any lawyer would be.
He said the same of his work for Judge Hlophe.
Xulu further insisted that he earned every cent of his legal fees Daff paid him, saying that he helped it win a number of successful cases, including the repatriation of more than $7 million (almost R100 million) from the United States, following a US court decision to compensate South Africa in an illegal fishing case.
“People should also take into cognisance that Barnabas Xulu did not do anything in his personal capacity. All the work that was done for Daff was done by the law firm B Xulu and Partners Inc, and not me in my personal capacity. It is critical to make the distinction between me and the law firm,” he said.
He also insisted that his appointment was not irregular as claimed in the charge sheet.
He was initially subcontracted by a company which the department had appointed to perform legal work.
It was this company which the Auditor-General later found had been irregularly appointed, not his law firm as stated in Ndudane’s charge sheet, Xulu said.
Xulu was subsequently appointed, through emergency procedures, to work for the department after a company launched urgent court action against it.
He also showed City Press his appointment contract which was signed by the department’s director-general Mike Mlengana.
Furthermore, Xulu said that any irregularities in his appointment would not be his doing, and that complying with procurement procedures was a duty the department was expected to perform.
He said that he had made full submissions to various bodies investigating the case, including the National Prosecuting Authority, the Hawks, the Public Service Commission, the Zondo Commission into state capture, and the Office of the Public Protector.
Xulu also said that the office of the State Attorney did not work for free for government departments but charged them for its services.
Xulu said he was unable to comment fulsomely at the time of publication because he had not been given permission to do so by the department as stipulated in his contract.
He only received that permission on Tuesday.
The department of agriculture, forestry and fisheries has paid a law firm more than R27 million for legal services that it could have obtained for free from the Office of the State Attorney.
The details about the department’s lucrative contract with B Xulu and Partners Incorporated are contained in a raft of fraud, theft, mismanagement of funds and abuse of power charges slapped on the department’s deputy director-general, Siphokazi Ndudane.
Barnabas Xulu is a high-profile attorney who helped set up the Friends of Jacob Zuma Trust, and who is known for defending Western Cape Judge President John Hlophe against a complaint of misconduct lodged by Constitutional Court judges.
He also represented Nkandla architect Minenhle Makhanya in the R155 million lawsuit brought against him by the Special Investigating Unit.
In May last year, the department’s director-general, Mike Mlengana, laid a series of disciplinary charges against Ndudane, including for the alleged irregular appointment of Xulu’s firm, as well as the theft of three tons of abalone worth R7.5 million.
For the abalone theft, Ndudane was charged alongside colleagues Thembalethu Vico, the fisheries unit’s acting chief director of monitoring, control and surveillance, and Nazeema Parker, the unit’s former chief financial officer.
Parker was fired last month following a disciplinary hearing.
Vico’s hearing is coming up this week, while Ndudane’s will sit for three weeks between May and June.
Ndudane’s charge sheet shows that, between April 2017 and June last year, Xulu’s law firm invoiced the department to the tune of R27.3 million.
Papers Mlengana filed at the Western Cape High Court in January show that the Auditor-General found that the appointment of Xulu’s firm was irregular and was not done through proper tender processes.
“These payments were found to be irregular expenditure due to noncompliance of the applicable prescripts,” the court papers state.
The department did not respond to detailed questions, including some about the process followed while appointing Xulu’s firm instead of going to the Office of the State Attorney.
The Office of the State Attorney is responsible for drafting and handling all government contracts, and defending all criminal and civil suits against government departments.
DIRECTOR-GENERAL AND MINISTER LOCK HORNS
Mlengana and Agriculture, Forestry and Fisheries Minister Senzeni Zokwana are at war over Mlengana’s decision to discipline Ndudane, Parker and Vico.
Last month, Zokwana filed an urgent application at the Western Cape High Court seeking to interdict Mlengana from continuing with the disciplinary hearings. Zokwana later withdrew the application.
He had argued that some of the documents relied on to draw up the charges against Ndudane, Vico and Parker were “top secret”, and that those responsible for the hearing would need security clearance before accessing them.
He also argued that some of the documents to be used during the hearing were protected under the Protected Disclosures Act.
Zokwana also contended that some of the charges against Ndudane, Vico and Parker were already under investigation by the Public Protector, the Hawks and the National Prosecuting Authority.
Documents annexed to the court file show that, before going to court, Zokwana wrote to Mlengana asking him to suspend the hearings because Ndudane approached him and blew the whistle on corruption in the department.
In his letter, Zokwana further claimed that Ndudane also reported the same allegations to the Public Protector.
Mlengana refused to suspend the hearings, arguing that Zokwana had not provided him with any information about who made the disclosures, nor about when, to whom, or what they contained.
In an angry follow-up letter to Mlengana in January, Zokwana told his department’s director-general that he couldn’t hand over this information because the case was already under investigation by law enforcement entities and the Public Protector.
Emails attached to court papers show that, while Public Protector Busisiwe Mkhwebane was investigating corruption allegations in the department, she refused to recognise Ndudane’s abalone theft charge as a protected disclosure because she was only approached with it after Ndudane was suspended and the disciplinary process had started.
WHAT THEY SAY
Xulu strongly denied all the allegations against him contained in the disciplinary charge sheets, but refused to provide information about his relationship with the department or how much he had been paid.
“There are a number of agencies currently investigating matters relating to the department of agriculture, forestry and fisheries that form the subject of your query. It is our belief that it would not be prudent to proceed without their comments,” he said.
“In addition to the subject matter falling with the ambit of the above listed agencies, the service level agreement between our firm and the department prohibits our firm from addressing the media without the express consent of the business, which we have requested and have not as yet received.”
In April last year, City Press reported that an investigation by the department’s fisheries unit’s monitoring and surveillance director Nkosinathi Dana accused Ndudane, Vico and Parker of “illegally and unlawfully” authorising the use of abalone in a staged sting operation.
The sting operation, conducted in January last year, was allegedly aimed at defrauding the department.
In his report, Dana accused Ndudane, Vico, Parker and two Crime Intelligence Division agents of swapping three tons of good quality abalone with rotten stock when they discovered their plan had backfired.
. This article was updated to reflect Xulu’s latest response.