Hlophe's lawyer fights 'unconstitutional' contempt ruling, refuses to hand over Porsche

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Barnabas Xulu is seen during the Judicial Service Commission tribunal which is investigating a complaint of judicial misconduct against him.
Barnabas Xulu is seen during the Judicial Service Commission tribunal which is investigating a complaint of judicial misconduct against him.
Nelius Rademan, Gallo Images, Foto24
  • Western Cape Acting Judge Mas-Udah Pangarker found attorney Barnabas Xulu guilty of multiple counts of contempt of court linked to his R20m legal fees battle with the environment department.
  • The department had successfully applied for Xulu's assets, including his Porsche 911 Carrera, to be frozen as part of its efforts to recover the R20 million in legal fees owed to it by his firm.
  • Xulu is now seeking to challenge Pangarker’s ruling that he was guilty of contempt of court for, among other things, defying multiple court rulings that he hand over the Porsche.

Judge President John Hlophe's attorney Barnabas Xulu is urgently seeking to stay the scathing contempt of court ruling made against him, which he says is "unconstitutional", and unlawfully ordered him to hand over his Porsche.

Western Cape Acting Judge Mas-Udah Pangarker last week found Xulu guilty of multiple counts of contempt of court linked to his increasingly ugly R20 million legal fees battle with the Department of Environment, Forestry and Fisheries.

She also ruled that he receive a 30-day suspended sentence for contempt and pay a R30 000 fine - a punishment that Xulu has now slammed as "draconian".

"The evidence points to the ineluctable conclusion that Mr Xulu and [his law firm] BXI have appropriated to themselves the right to disobey Court orders which they believe they are entitled to disobey as and when they see fit," the judge said.

In doing so, she said, they had "flouted the Constitution".

"They have acted with impunity and the utmost contempt and it is of great concern that an attorney has conducted himself in continued wilful defiance and bad faith in the manner set out in the judgment."

Xulu's contempt saga has its genesis in a January 2020 ruling delivered by Western Cape High Court Judge Owen Rogers, who found that the service level agreement and subsequent R20 million legal fees settlement agreement between Xulu's BXI law firm and the department were both unlawful.

Rogers ordered Xulu's firm to pay back the R20 million and ruled that Xulu must be called upon to explain why he should not be held personally liable for that money.

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

READ | Hlophe lawyer guilty of contempt of court, must hand over Porsche or face jail time

Xulu has now petitioned the Appeal Court in a bid to challenge Rogers' ruling against him, in a case where, among other things, he uses his status as Hlophe's lawyer to argue that he has been unfairly treated.

He further argues that Rogers' ruling was obtained through "perjury and fraud" by the department and should be overturned.

Prior to that appeal, the department went to court to freeze Xulu's assets - as part of its efforts to recover the money that his firm has been found to owe it.

Moegamat Abader, the department's acting director-general, in 2020 successfully argued that Xulu's assets (including his Porsche 911 Carrera) 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 now contends that Pangarker's finding that he was guilty of contempt for not handing over the Porsche, despite being ordered three times to do so, is legally unsound - because his firm was found to be liable for the R20 million, not him personally.

'Nonsensical and far-fetched'

Pangarker last week slammed Xulu for failing to provide any explanation for "why the Porsche was not surrendered and why its location was not disclosed".

She rejected Xulu's argument that he had failed to hand over his Porsche because of he was attempting to get the judgment that froze his assets rescinded as "nonsensical and far-fetched to say the least".

"It is of great concern that the deputy sheriff made several attempts to service the writ of attachment, left messages at the Xulu residence, yet all to no avail," she said.

"But even more alarming is the report that the attorney fled from the deputy sheriff attempting to execute the writ."

Pangarker also found that Xulu and his firm's non-compliance with multiple other court orders was deliberate and done in bad faith - and ordered that her judgment be forwarded to the Legal Practice Council, which is already considering a separate misconduct complaint against Xulu.

The judge said:

My view is that Mr Xulu has conducted himself in a manner totally at variance with the integrity and utmost good faith principles inherent to a person who is an officer of the court.

"The conclusion is that BXI and Mr Xulu have violated the integrity and dignity of the court through their conduct… Ultimately, the conduct displayed by [BXI and Xulu] undermined respect for and obedience to the law."

Xulu however insists that, because he has launched legal challenges to the three judgments he is accused of defying, one of which he filed on the eve of the contempt case against him, he cannot be found guilty of contempt.

Xulu's counsel Thabani Masuku has previously rubbished the department's arguments that the attorney had used "Stalingrad" tactics to avoid paying back the money that his firm owed the department.

'The ultimate bogeyman'

In her ruling, Pangarker said it appeared that, by arguing that he was entitled to question court orders, Xulu was suggesting that he and his firm, "unlike other litigants against whom such orders are granted, be exempt or immune from the effects and implications of Court orders".

Xulu now argues that nothing could be further from the truth.

"I believe very strongly in the rule of law and justice," he states.

"I did not ignore any court-ordered obligations and in fact I took positive reasonable and practical measures to seek a rescission of the order and have pursued an appeal in the Supreme Court of Appeal."

While arguing that "the dominant narrative angle" about him in the media and Pangarker's ruling portrays him as "the ultimate bogeyman", Xulu seeks to suggest that he is, in fact "a litigant who is vigorously exercising his constitutional rights".

He also accuses "certain quarters of the media" of driving a narrative about him that "seeks to dismissively paint me as an imperious, impious, brash, recalcitrant and flamboyant litigant who believed he is a law unto himself".

Pangarker's ruling, he says, "fortified" that narrative.

While the judge ordered that Xulu could not bring any further legal action against the department until he and his firm had "purged" their contempt, Xulu says this is a "serious error law" and a violation of his constitutional rights.

"The effect of the orders appealed are that my legal practice has ceased to function, my personal and family life imperilled immediately. In fact, these orders effectively suspend my constitutional rights. Fundamentally, the effect of the orders are that I am forthwith deprived of the right to defend myself in a court of law."

Xulu further argues that it is "impossible" for him to comply with Pangarker's order that he pay a R30 000 fine for contempt, as his bank accounts have been frozen.

His application for a stay of the judge’s ruling is scheduled to be heard on 20 May.

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