Xulu fees battle has nothing to do with targeting a black law firm, says fisheries dept

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Attorney Barnabas Xulu. (Photo: Gallo Images)
Attorney Barnabas Xulu. (Photo: Gallo Images)
  • A lawyer representing the fisheries department says if public money ends up in the hands of the wrong people, it should be returned. 
  • The department wants lawyer Barnabas Xulu to be held personally liable for R20 million in legal fees paid into his trust account.
  • However, Xulu says paying the money back could equate to theft of his work.  

A lawyer for the fisheries department has rubbished lawyer Barnabas Xulu's claims that they are targeting a small black-owned law firm, as they seek the repayment of R20 million in legal fees. 

Advocate Nazreen Bawa said that while she agreed with Xulu that it was difficult for black legal practitioners to get ahead, "that can never be a justification for taking public money out of a government account".

She said that if public money ended up in the hands of the wrong person, it should be returned. 

"This wasn't even fisheries money," said Bawa. "This was agricultural money that was taken."

Judge Phillip Zilwa spent the week in an online application by the Department of Agriculture, Forestry and Fisheries (DAFF), and its successor the Department of Forestry, Fisheries and the Environment. 

They want Xulu to be held personally liable for R20 million in legal fees paid into his trust account, and for the money he moved to other accounts linked to him - Setlacorp and Incovision. 

READ | State is extravagant in its pursuit for R20m from lawyer Barnabas Xulu, court hears

Xulu secured the R20-million payment via a court order, and writs executed by the Sherriff of the Court, out of DAFF's accounts. 

Xulu insists that it was payment for services rendered, and was legally based on a service level agreement he had with DAFF, a settlement order, and writs issued by the court. 

He said he was victim of politics, and possibly also caught up in turmoil at the Western Cape High Court, which also involves his client, Judge President John Hlophe.

He says paying the money back could even equate to theft of his work. 

He said the fees included his work in the department's victorious restitution claim against the US bank account of a Hout Bay fishing company director to compensate for the overfishing of South Africa's lobster and hake. 

He had to start moving the money immediately because he owed service providers, and he had to pay back a loan to his former office manager. 

In replying arguments, Bawa submitted that Xulu's services had been terminated, and that the department had kept him on just for the reparations case which was nearing completion. 

She said that, by then, the department owed him R6.3 million, but that this had eventually ballooned to R56 million. 

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

This was more than half of the $7-million settlement - around R100 million at the time. 

She said the service level agreement was eventually set aside by Judge Owen Rogers, as was the settlement order, and the writs that he obtained, and that he was ordered to pay the money back.

This week's court hearing did not delve into whether anybody from the department has been arrested for letting the money be paid over.

Bawa disputed that an attorney of Xulu's standing did not know there were supposed to be procedures and notices before the money was paid out to him so quickly, and she could not grasp how his fees had escalated to R56 million from R6.3 million.  

"And then you complain that a small black firm is being targeted," said Bawa. 

Bawa submitted that his office manager, Nicole Lauren Pick, had colluded with Xulu in helping to move the money and that she should pay back money put through her account by Xulu's company Barnabas Xulu Incorporated when he got the money from DAFF.

Pick's lawyer Murray Bridgman had earlier showed that she had bought Xulu's business travel tickets from her personal bank accounts and had covered other business expenses on his behalf because he could not get credit.

Bawa rejected this explanation, saying that while Pick was lending Xulu money to keep his business afloat, he was driving around in a Porsche. 

Previous judgments in the dispute have indicated that there was animosity between the former Director General Mike Mlengana and his deputy Siphokazi Ndudane, and that only Ndudane was allowed to deal with Xulu at a service level. 

Mlengana later had a change of heart and, according to a transcript of a phone call between himself and Xulu, apologised for thinking DAFF Minister Senzeni Zokwana was allegedly in cahoots with Xulu, and told Xulu he would get his money. 

Judgment was reserved, and now Judge Phillip Zilwa faces going through almost 8 000 pages of documents, in addition to the notes he took through the week-long hearing. 

Zilwa was seconded to the court from the Eastern Cape to hear the matter.

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