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

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Attorney Barnabas Xulu last month laid a gross judicial misconduct complaint against Judge Owen Rogers and ten other judges with the Judicial Service Commission. (Photo: Gallo Images)
Attorney Barnabas Xulu last month laid a gross judicial misconduct complaint against Judge Owen Rogers and ten other judges with the Judicial Service Commission. (Photo: Gallo Images)
  • The Department of Environment, Forestry and Fisheries is arguing that attorney Barnabas Xulu is guilty of contempt of court, after he failed to comply with six court orders.
  • The department wants Xulu to face a suspended sentence for failing to hand over his Porsche, after being ordered to do so after his assets were frozen.
  • On the eve of that contempt case, Xulu petitioned the Supreme Court of Appeal for the right to appeal Western Cape High Court Judge Owen Rogers' ruling that his firm must pay back the R20million in legal fees it had received from the department.

Counsel for Judge President John Hlophe's attorney Barnabas Xulu has vehemently denied that he had employed "Stalingrad tactics" to avoid paying back R20 million in legal fees his firm was found to have unlawfully received from the state.

READ | Top lawyer Barnabas Xulu ordered to pay back R20m in legal fees to fisheries department

"Everyone just thinks that when you litigate for your rights, you are engaged in some Stalingrad process," Xulu's advocate Thabani Masuku argued on Friday, in response to the Department of Environment, Forestry and Fisheries' contempt of court application against the attorney for failing to comply with six court orders linked to the fees dispute.

"It's a word that’s becoming abused by lawyers to victimise those that are seeking to assert their own rights and in this case it should absolutely find no application whatsoever," he added, after slamming the contempt case against Xulu as "oppressive" and an "embarrassment".

The department has previously argued that Xulu had adopted a "Stalingrad" approach to the litigation brought against him – a term first used by former president Jacob Zuma’s late advocate Kemp J Kemp to describe his legal response to the state’s corruption case against him – to avoid paying back the money owed by his firm.

It contends that it was forced to pursue Xulu for contempt of court, after he repeatedly and without explanation failed to comply with the rulings given against him. 

The department has also asked that Xulu face a suspended sentence for defying a ruling that he hand over his Porsche 911 Carrera to the Sheriff until his personal liability for the R20 million has been decided.

Karyn Maughan | Fear, loathing and a missing Porsche: The case that could see Hlophe’s lawyer jailed

Moegamat Abader, the department’s acting Director-General, last year successfully argued that Xulu's assets should be frozen because of the way in which he had "simply dissipated – and appropriated – funds" from his law firm's bank accounts without regard for its debts and obligations or the court orders made against it.

Xulu is now seeking a rescission of that judgment.

On the eve of the department’s contempt of court application against him, Xulu also lodged a petition in the Supreme Court of Appeal, in an attempt to challenge Western Cape High Court Judge Owen Rogers’ January 2020 ruling that his firm’s service level agreement and subsequent R20-million legal fees settlement agreement with the department were unlawful.

Rogers ordered Xulu’s firm to pay back the R20 million. 

He also ruled that Xulu must be called upon to explain why he should not be held personally liable for that money.

Western Cape Judge President John Hlophe with Barnabas Xulu. (Bongiwe Gumede)

That case is yet to be heard, because of the multiple unsuccessful legal challenges lodged by the attorney and former department officials to the decision.

Masuku argues that, because Xulu had launched two new legal challenges linked to his firm’s fees dispute with the department after the contempt case against him was lodged, he cannot be found to have violated the court orders issued against him willfully and in bad faith.

He said the department’s contempt case against Xulu was "meritless".

"You will look and find not a single application where the state, post-1994, has been so vigorous with a citizen to pursue a debt."

Masuku argued: "They want his car because they want him to pay money that they got from a judgment that is under appeal. That’s wrong."

He added: 

It is also like a hankering for the past where people who were not able to pay were sent to jail for not being able to pay. We have got past that….This application is an abusive application, which is intended to achieve harassment of a litigant because the state has limitless resources to victimize this particular respondent [Xulu].

Xulu has repeatedly painted himself as a victim of both the department and the courts that have ruled against him – and, potentially problematically for Hlophe, framed his alleged mistreatment by the courts as a consequence of his relationship with the Judge President.

In his latest petition to the Appeal Court, Xulu argues that he had sought Judge Owen Rogers’ recusal from the fees dispute case, after the judge had ruled against him, because of the "extra-judicial role that the Honourable Judge Rogers played" in the ongoing misconduct dispute between Hlophe and his Deputy Patricia Goliath.

Rogers was one of the ten judges who refused to share a bench with Judge Mushtak Parker, after he tried to backtrack on claims he’d made under oath, and to other judges, that Hlophe had attacked him in his chambers.

That alleged assault was raised by Goliath, and accepted by Chief Justice Mogoeng Mogoeng, as a potential ground for Hlophe’s impeachment. 

Rogers and several other judges laid a complaint against Xulu for claiming, among other things, that he and Goliath had met to discuss the department’s litigation against him and accusing him of acting with bias against him.

Karyn Maughan | How the WC Judge President has faced 10 major scandals, without any sanction

Xulu has now accused him and his colleagues of "gross judicial misconduct".

Without providing any evidence, the attorney argues that Rogers improperly decided to “ignore” his application for his recusal after he and his colleagues "discussed" his application. 

Rogers declined to hear the application, after Xulu withdrew it and then attempted to revive it during his failed leave to appeal application.

Xulu also wants the Supreme Court of Appeal to find that Rogers had "no basis in law" to find that he could potentially be held personally liable for the R20million paid to him firm by the department. 

Masuku on Friday told Judge Mas-Udah Pangarker, who is deciding the department’s contempt case against Xulu, that she did not have to decide whether his recently launched legal challenges were "half-baked or full-baked" when she ruled on whether he was guilty.

As soon as Xulu filed his legal challenges to the rulings that he was accused of defying, Masuku argued, "reasonable doubt" about his guilt was created.

Masuku stated: 

This [contempt] application is simply an abuse of court, it’s an abuse of process. It’s an oppressive process. It’s a process that it is intended to scandalize an officer of the court by the state, which has received benefits of his professional services.

While Masuku contended that the department should be hit with a punitive costs order as punishment for its "abusive" contempt of court application, its advocate Nazreen Bawa said there was "no basis" for such an order. She stressed that the department was seeking a suspended sentence against Xulu in an effort to get him to hand over his Porsche.

"We can’t get him to comply on other orders. He has already spent the R3,4mlillion," Bawa stated, in reference to Xulu’s failure to refund the money he admitted his firm had been mistakenly paid by the department.

The advocate further pointed out that Xulu had filed his petition to appeal Rogers’ ruling the day before his contempt case was due to be argued and questioned whether such last-minute legal action was a valid defense against the contempt case against him – given his repeated failures to comply with the court orders given against him.

"We will have absolute chaos if anyone can decide when and what orders they can obey," she added.

Judgment has been reserved.

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