Western Cape Judge President John Hlophe's lawyer, Barnabas Xulu, must repay the state more than R20m his firm received from the former Department of Agriculture, Forestry and Fisheries (DAFF) for work performed, the Western Cape High Court has ruled.
On Thursday, Judge Owen Rogers ruled in favour of the department and ordered Barnabas Xulu Incorporated (BXI) to pay back R20 242 472 by April 30.
Xulu had worked on behalf of the department after BXI was appointed by then-DAFF minister Senzeni Zokwana in early 2017. A service level agreement for work was reached in April 2019, and payment was confirmed by order of the court in June 2019.
However, the department, which became the new Department of Environmental Affairs, Forestry and Fisheries following the 2019 general elections, launched an urgent application in August to set aside the service level agreement it had entered with BXI.
Judge Rogers this week found BXI had received the payments for work done based on invalid writs of execution and notices of attachment, as the DAFF was entitled to free legal advice from the state attorney.
He also found that the court's writs of execution were not checked for compliance with the State Liability Act - the act governing work done by any contractor on behalf of the state.
"There was no emergency requiring BXI to be appointed," Judge Rogers found. "BXI obviously knew that it was appointed without process. It is ironic, in the circumstances, that, in subsequent work for the DAFF, BXI criticised officials in the department for having made appointments that did not follow proper procurement procedures."
However, Xulu has the opportunity to show cause by March 12 why he should not pay the amount jointly and severally with BXI.
On Friday, he told News24 he was consulting on the matter and pointed to written communication with the department purporting to show the settlement agreement was indeed valid.
In June 2019, Judge Elize Steyn initially confirmed the settlement agreement between BXI and the DAFF by order of the court.
Judge Rogers, however, has now set this aside.
The ruling could have far-reaching consequences for any private firm representing the state, given the circumstances around its appointment.
This case also adds to the intrigue in the feud between Judge Hlophe and his deputy, Deputy Judge President Patricia Goliath.
Initially, the settlement agreement between the DAFF and BXI had been due to appear before Judge Goliath, read the ruling. She wanted supplementary evidence that the agreement had been duly concluded, and required service from National Treasury, state attorney, the National Director of Public Prosecutions, minister and director-general.
BXI then complained to Judge Hlophe that Judge Goliath's "requirements went beyond what is reasonable". She then informed BXI she would no longer be dealing with the case in view of the complaints.
Xulu is representing Judge Hlophe in the feud between him and Judge Goliath. This month, she lodged a 14-page gross misconduct complaint against Judge Hlophe and his wife, Judge Gayaat Salie-Hlophe. Both denied there was any merit to the complaint.
Xulu is also representing Judge Hlophe in disciplinary proceedings over an allegation that he had tried to improperly influence two Constitutional Court justices in a case involving former president Jacob Zuma.
Xulu was also the attorney who established the Friends of Jacob Zuma Trust, and he represented the architect who designed the controversial upgrades to Zuma's private residence in Nkandla, Minenhle Makhanya.
- Additional reporting by Jenni Evans