Fisheries dept wants Barnabas Xulu to be held personally liable in R20m payment dispute

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Barnabas Xulu.
Barnabas Xulu.
Nelius Rademan, Gallo Images, Foto24
  • The fisheries department alleged well-known lawyer Barnabas Xulu moved more than R20 million in legal fees "with undue haste" as it contested the payment. 
  • And, instead of using the money to pay his law firm's business accounts, the department alleged he used it for personal expenses.
  • The department is arguing in the Western Cape High Court that Xulu should be held personally liable for paying back the money.

The fisheries department alleges well-known lawyer Barnabus Xulu moved more than R20 million in legal fees "with undue haste" as the department contested the payment to him. 

And, instead of using the money to pay his law firm's overdue business accounts, or preserving the funds while the dispute was settled, the department alleged he used it for personal expenses.

For this reason, the department is arguing in the Western Cape High Court that Xulu should be held personally liable for paying back the money because he was in charge of the companies that the money was moved to.

Xulu has coincidentally represented Western Cape Judge President John Hlophe in his case involving the Judicial Service Commission.

Hlophe in turn asked Justice Minister Ronald Lamola to appoint a judge in the case, instead of himself.

READ | Another blow for Barnabas Xulu as judge dismissed recusal application

Xulu's case is in its second day at the Western Cape High Court, presided over by Judge Phillip Zilwa from the Eastern Cape division.  

The record for the increasingly complex case runs into thousands of pages. 

It all started off with rock lobster that had been smuggled from Hout Bay in Cape Town and the conviction of Arnold Bengis (now deceased) in the US.

READ | SA government targets lobster poacher's US trust millions after conviction

The department was pleased with this breakthrough regarding South Africa's marine resources.

The South African government was also to be paid a large amount in US dollars by the accused in reparations.

The money, which the department said, in a previous statement, came to around R99 million, was paid, and Xulu duly sought his fee of more than R20 million. 

However, it has since stated the service level agreement appointing Xulu in the first place was not valid. 

There have also been allegations of leadership disputes and factions in the department and an allegation there was an attempt to bypass the state attorney to extract private legal fee payments from the department.

Money

Xulu battled to get his payment and eventually approached the Western Cape High Court for a writ for the Sheriff of the Court to get the money from the department. 

It was granted, and the sheriff got the money for his company, Barnabus Xulu Incorporated (BXI). 

The state attorney's office scrambled to get an undertaking from him not to spend the money because it believed he was not entitled to it.

It applied to the court for the writ to be suspended while everything was sorted out but in the meantime, Xulu paid the money from his trust account into the business account of BXI and into his other accounts.

He has submitted he had to do this because his company owed debts to other companies for their services rendered, and his business costs.

Xulu also submitted there was no action contesting the payment, but the State submitted he already knew by 31 July the state attorney was going to contest the payment. 

He insisted he was paid the money legally.

The department alleged he started spending the money on 2 August, and he actually used the money for his personal expenses, including for a Porsche, a house in Sheffield Beach, and personal shopping.

Liable

The case is an application by the department to hold Xulu personally liable, and not just his company, BXI.   

It wants the judge to rule that his two companies, Setlacorp and Incovision, and his former office manager, Nicole Lauren Pick, be held liable.

Advocate Nazreen Bawa spent Monday and Tuesday unpicking what the department alleged Xulu spent the money on to establish personal liability beyond the liability of his company, BXI.

She submitted by moving the money out of BXI, Xulu had "stripped" it of its value. 

"You are making sure there is nothing left to pay the department," submitted Bawa of Xulu's financial transactions.  

The application is continuing.

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