Barnabas Xulu held in contempt of court

Lawyer Barnabas Xulu – one-time legal representative of controversial Western Cape Judge President John Hlophe – and B Xulu and Partners (BXI) may finally have reached the end of the litigation road in connection with the Department of Agriculture, Forestry and Fisheries (DAFF) and the Department of Environmental Affairs (DEA).

In the latest judgment handed down on May 4, 2021, the parties are held in contempt of court, face a fine of R30 000, and are refrained from further litigation.

In addition, the amount of R20 242 472.90 must be paid to the DEA, while Xulu loses his Porsche and faces a three-year suspended sentence.

Read: Judge Hlophe to face tribunal (Oct 2012)

Background

BXI allegedly rendered services to the Marine Living Resource Fund on behalf of the DAFF, for which it received a payment of just over R20 million.

This matter was fraught with controversy, resulting in a flurry of litigation and number of orders being handed down in court, including:

• In the matter heard before Judge Rogers on December 12 and 13, 2019, judgment handed down on January 30, 2020, Judge Rogers ordered that Xulu and BXI should pay DAFF the amount of R20 242 472,90 by Thursday April 30, 2020.

• In a judgment handed down on May 4, 2021, Acting Judge Pangarker held that Xulu and BXI are in contempt of six civil court orders granted by Judges Rogers, Smith and Binns-Ward of the Western Cape High Court during 2019 and 2020.

The DAFF’s functions were transferred to the DEA, pursuant to May 2019.

Contempt of court

Judge Pangarker cited numerous judgments on contempt of court, and concluded that the requirements for contempt of court are:

(a) the order must exist;

(b) the order must be served on or brought to the notice of the person/s held in contempt of court;

(c) non-compliance with the order; and

(d) the non-compliance must be wilful and mala fide (intentional or malicious).

Xulu and BXI did not comply with the order handed down by Judge Rogers to preserve the balance of R3.4 million described as ‘Forex Holding’, and to maintain a minimum amount of R380 000 in BXI’s trust account. Judge Pangarker found that this amounted to “wilful and mala fide” conduct.

The judge also found that BXI “wilfully and deliberately” failed to comply with the order to repay the amount of R20 242 472.90. “In the circumstances, a declaration of contempt in respect of non-compliance with paragraph 144 (e) is competent.”

Xulu managed to evade the sheriff of Cape Town who was attempting to serve a writ to attach the Porsche, and ignored three court orders regarding the Porsche. The judge found that this proved Xulu’s “wilful and mala fide non-compliance beyond reasonable doubt and thus he is found to be in contempt”.

Judge Pangarker said: “It is not open to a litigant, including an attorney or law firm, against whom an order is granted, to pick and choose whether he wishes to comply with the court order.”

Flagrantly, deliberately and defiantly disrespected court

Judge Pangarker referred to the allegation by the counsel for BXI and Xulu, Masuku SC, that the DEA had set out to embarrass BXI and Xulu.

In reply, he stated: “The evidence, which is undisputed, paints a picture of a law firm and its director who have flagrantly, deliberately and defiantly disrespected and refused to comply with court orders granted by the various judges of the Western Cape High Court.”

He added that rather than comply, as required, “BXI and Mr Xulu embarked on urgent applications which were ultimately dismissed” … and flouted the “constitution which makes court orders binding on all persons to whom it applies”.

Final orders

Judge Pangarker handed down the following orders:

• Xulu and BXI are fined R30 000 jointly and severally. The fine must be paid, and the Porsche 911 Carrera handed over, by no later than 12h00 on Friday, May 7, 2021. Failing which Xulu is sentenced to 30 days’ imprisonment.

• Xulu is given a three year suspended 30 day sentence, on condition he is not again held in contempt of court in relation to this case.

• Xulu and BXI are also precluded from launching any further applications against the DEA and the DAFF in relation to this case, except for pending matters before Judge Zilwa.

• Costs were awarded against Xulu and BXI.