Judge dismisses bid by Hlophe's lawyer to appeal Porsche contempt ruling against him

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Attorney Barnabas Xulu.
Attorney Barnabas Xulu.
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  • Western Cape Acting Judge Mas-Udah Pangarker has dismissed attorney Barnabas Xulu's efforts to challenge her finding that he is guilty of multiple counts of contempt of court.
  • The charges are linked to his R20 million legal fees battle with the Department of Environment, Forestry and Fisheries.
  • The department had successfully applied for Xulu's assets to be frozen – as part of its efforts to recover the R20 million in legal fees owed to it by his firm.

Judge President John Hlophe's attorney, Barnabas Xulu, has failed in his urgent bid to challenge the scathing contempt of court ruling made against him, which he argued unlawfully ordered him to hand over his Porsche.

On Monday, Western Cape Acting Judge Mas-Udah Pangarker found the grounds that Xulu advanced to appeal her ruling that he was guilty of multiple acts of contempt of court "do not have substance or merit". She added that "there appears to me to be no reasonable prospect of success on appeal".

Pangarker had found Xulu guilty of contempt of court linked to his 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 Xulu slammed as "draconian".

READ | Serjeant at the Bar: Why wasn't Western Cape Judge President John Hlophe placed on suspension?

In a potentially embarrassing development for Hlophe, who is currently awaiting a Judicial Service Commission (JSC) vote on whether he could be impeached for gross misconduct, Pangarker's ruling reveals that Xulu sought the judge president's intervention in the saga.

Xulu did so by writing to Hlophe and asking him to refer all the cases linked to his fees battle with the Department of Environment, Forestry and Fisheries to the JSC. Hlophe refused to intervene, but Xulu has already repeatedly used his association with the judge president to argue that he has been unfairly treated by the judges who have ruled against him.

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 is currently being heard by Eastern Cape Judge Phillip Zilwa.

Xulu has also petitioned the Appeal Court in a bid to challenge Rogers' ruling against him, which he argues was obtained through "perjury and fraud" by the department and must 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.

Last year, Moegamat Abader, the department's acting director-general, 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 argued that Pangarker's finding that he was guilty of contempt for not handing over the Porsche, despite being ordered to do so three times, was legally unsound.

Pangarker has now dismissed that argument and found that the evidence led in the contempt application "showed repeated non-compliance [by Xulu] of the orders related to the Porsche".

Xulu's lawyers have indicated he will now attempt to petition the Appeal Court to hear his challenge to Pangarker's ruling, which portrays him as consistently considering himself to be above the law.

READ | Karyn Maughan: Why the JSC is split on Hlophe's fate of impeachment, suspension

"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 stated in her contempt judgment.

"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."

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 bought by Rogers against Xulu.

"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 judge said.

"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."

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