- Nandos, Netflix, a coastal home and a Porsche – these are some of the items lawyer Barnabas Xulu is alleged to have paid for with a R20 million payment the fisheries department now wants back.
- He was supposed to have kept the money in a trust account and paid it back, following a dispute over how he got it from the department in the first place.
- Xulu alleges the department is engaging in "theft of service" by trying to make him pay back the money.
A fisheries department application to have lawyer Barnabas Xulu, his companies and his former office manager held personally liable for the repayment of R20 million, is expected to continue in the Western Cape High Court.
The long history of the matter has its roots in a service level agreement (SLA) Xulu's company, Barnabas Xulu Incorporated (BXI), had with the Department of Forestry and Fisheries when Senzeni Zokwana was the minister, and before it became the Department of Fisheries, Forestry and Environment.
Xulu's company secured lucrative legal work, apparently through Zokwana's lobbying, and only one person in the department was allowed to deal with him - the deputy director-general. He got the work even though the department had its own lawyers.
In a long sequence of events in which the director-general was sidelined and suspended for a while, Xulu fought for payment from the department for services he had rendered.
He eventually secured writs to attach the money from the department's Standard Bank account and R20 million was paid into his trust account.
When the State Attorney's office found out about it, they contacted Xulu to say the payment was in violation of the State Liability Act because none of the required notice timelines and processes had been followed. Various government officials were supposed to have been notified and there was supposed to have been a discussion about what was supposed to be attached.
They tried to get Xulu to agree to refrain from touching the money and told him that as a lawyer who did state work, he should know how the State Liability Act works.
But by the time they got to court, BXI had already started moving around the money and there was hardly anything left in his business account.
The department obtained a Western Cape High Court order from Judge Owen Rogers in 2020. It declared the SLA and the settlement invalid and rescinded the writs.
But Xulu maintained that he moved the money because he had to catch up on all of his business accounts which were overdue because he had waited so long for payment from the department.
These included a loan to his company Setlacorp, building rental, a bond that he was behind on, and other pressing financial needs that had mounted during his long wait for payment.
The department disputes this, alleging that he methodically shifted the money out of BXI for his personal use so that there would be nothing left for the state to get back.
Advocate Nazreen Bawa said that two of the companies that money was moved to were Setlacorp and a company called Incovision.
Setlacorp was purportedly a company that provided accounting services to BXI. However, Xulu owned Setlacorp, and on closer inspection, it did no accounting for BXI. Instead, it was used to funnel money out to another two accounts and to buy things at shops like Nando's and Baby City.
Bawa submitted that Xulu might have been slightly behind on the bond for his family home in Sheffield Beach, but he paid far more than he had to into the bond from the money received.
He did this by paying funds to Incovision, which he owns and is the registered owner of the Sheffield Beach house.
Some of the money he paid onto the Incovision loan from Investec went towards the financing of his Porsche.
She submitted that he also spent the money on school fees, Netflix, a Camp's Bay rental home and other things not related to the pressing business debts of BXI.
'Theft of service'
The department submitted that Xulu was the brains behind BXI, Setlacorp and Incovision and that he should be held personally liable for the money that was paid to those companies.
In the meantime, while the application was under way, Xulu filed an application for direct access to the Western Cape High Court to try again to challenge the contempt orders made against him.
He alleges that the department is engaging in "theft of service" by trying to get him to pay back money for services he rendered.
He referred to a complicated lobster smuggling case where the accused was abroad. He helped the department get more than R100 million in reparations back to South Africa from the US.
In his affidavit, he says he acted in accordance with the law.
He unsuccessfully applied for leave to appeal the contempt order to the Western Cape High Court and has now petitioned the same court for leave to appeal to a full Bench.
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