Another blow for Barnabas Xulu as judge dismisses recusal application

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Attorney Barnabas Xulu.
Attorney Barnabas Xulu.
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  • The Western Cape High Court dismissed an application brought by lawyer Barnabas Xulu.
  • Xulu has been accused of using "Stalingrad tactics".
  • In January 2020, the court ruled that Xulu's firm should pay back R20 million in legal fees.

Attorney Barnabas Xulu has suffered another blow in what has been described as a "Stalingrad strategy" to hold onto the R20 million in legal fees his firm unlawfully received from the government.

On Tuesday, Xulu lost his bid to have a Western Cape High Court judge recuse himself.

The court also dismissed his application for leave to appeal against a November 2020 ruling, which confirmed another judge's order to freeze his assets.

Xulu has been challenging the court's January 2020 ruling that his firm's service level agreement and the R20 million legal fees settlement agreement with the Department of Environment, Forestry and Fisheries were unlawful.

READ | No ANC members allowed to hold RET, faction meetings at party premises, NEC decides

At the time, Judge Owen Rogers ordered that Xulu must be called upon to explain why he should not be held personally liable for the R20 million unlawfully paid to his firm.

The department has, however, accused Xulu of employing "Stalingrad tactics" to avoid paying the R20 million.

Xulu is the long-time attorney of Western Cape Judge President John Hlophe.

In October last year, Xulu also failed in his bid to have his assets unfrozen.

Evading

The department said the lawyer had been evading the Sheriff, following a ruling by Eastern Cape High Court Judge John Smith.

Smith granted the department's application for his assets – including his bank accounts, his holiday home in Ballito, KwaZulu-Natal, and his Porsche - to be frozen, News24 reported.

He also ruled that Xulu hand over more than R3.4 million, as part of the funds he unlawfully removed from the department's bank accounts.

Xulu had brought three applications to have the order set aside.

The first application was struck off on 16 October 2020, because he had not made out a case for urgency.

READ | Hlophe takes on Goliath in scathing response to JSC complaint: 'All the hallmarks of a paranoid judge'

The second application was withdrawn, and the third was dismissed.

In November 2020, Judge Ashley Binns-Ward confirmed Judge Smith's order.

Xulu then applied for Binns-Ward to recuse himself from the matter, as well as for leave to appeal. 

On Tuesday, Binns-Ward delivered a lengthy judgment, dismissing the matter with costs. 

He said Xulu wanted his recusal because the judge was a co-complainant against Xulu in a professional misconduct matter.

The judge filed the complaint with the Legal Practice Council.

Xulu described the complaint as "premature and frivolous". He also said Binns-Ward and other judges were party to a pending judicial conduct complaint against Judge Mushtak Parker. 

On his leave to appeal application, which was set down for hearing last month, the judge said he was presented with an amended application that contained various new facts.

In the application, Xulu said the court erred in failing to consider that the orders made by Smith were "pro non scripto [as though it was never written] and unenforceable". 

Smith did not hold a valid appointment in the Western Cape Division when he made it, he said.

He also said the court erred in failing of its initiative to ascertain the status of Smith when he made the orders.

Binns-Ward said, on the morning on 4 March, two minutes before he heard the leave to appeal matter, he was informed that Xulu intended to bring an application for his recusal.

ALSO READ | Hlophe attorney denies using 'Stalingrad tactics' to avoid paying back R20m in 'unlawful' fees

He, however, said: "… I am not persuaded that there is a reasonable prospect that another court might hold on appeal that I should have recused myself suo motu from hearing the return date proceedings in the anti-dissipation application.

"I am not persuaded that an appeal against the anti-dissipation order enjoys a reasonable prospect of success and there is nothing about the anti-dissipation case that establishes any compelling reason for it to enjoy the attention of a higher court on appeal."

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