Barnabas Xulu refused leave to appeal contempt of court judgment

Barnabas Xulu and his legal firm, B Xulu & Partners Incorporated (BXI), applied for leave to appeal the contempt of court order, fine, and the handover of the Porsche 911 Carrera, which had been handed down by Judge Pangarker, acting judge of the high court, on May 4.

Read: Barnabas Xulu held in contempt of court

In a judgment handed down on June 7, Judge Pangarker refused leave to appeal.

A summary of the events that ensued from May 4

The R30 000 fine had to be paid, and the Porsche handed over by 12h00 on Friday, May 7.

On May 6 Xulu addressed a letter directly to Pangarker, signed as director of BXI, stating that he cannot pay the fine as his bank accounts had been frozen. He requested the judge’s urgent reply.

Pangarker found that the letter addressed to her “directly and marked ‘private and confidential’ quite surprising, as a matter of courtesy and decency”.

The registrar at her request sent an email to Xulu informing him that she is “functus officio” in respect of the May 4 judgment. In other words, her decision was final and binding.

Xulu served the notice of appeal and stay of execution before the 12:00 deadline. However, his affidavit was not signed nor commissioned by a Commissioner of Oaths. On May 10 Xulu submitted his signed and properly commissioned affidavit.

Further developments ensued just before the leave to appeal commenced, referred to by the judge as ‘par for the course’. Xulu had petitioned the Judge President to direct that all proceedings, in this case, be halted and be referred to the Judicial Services Commission (JSC). The letter from Xulu’s attorney which accompanied the petition requested that the leave to appeal should await the Judge President’s decision.

Counsel for Xulu argued that there were constitutional issues involved, and that the “outcome of the petition and the Judge President’s directions were quite important”. However, Pangarker was informed by the registrar of the Judge President that he could not intervene in the matter.

Due to the time that had already been taken up on the day, the matter was postponed, and was heard on May 21. Judgment was reserved until June 7.

Supplementary affidavit

Again there were further developments, and Xulu’s attorney informed the Pangarker’s registrar that he would submit a supplementary affidavit. The affidavit couldn’t be emailed and had to be delivered.

Pangarker noted that Xulu’s affidavits dealt with “averments and allegations of impropriety and alleged perjury” by Ms Bawa SC, the counsel for the Department of Agriculture, Forestry and Fisheries (DAFF) and the Department of Environmental Affairs (DEA), as well as Mr Manuel, State Attorney.

However, on studying the affidavits, Pangarker concluded “Whilst I have indeed taken cognisance of the two affidavits presented to me this morning, the information presented to me does not change the eventual outcome of this judgment”.

Pangarker also in detail dealt with all the allegations made by Xulu and BXI in their leave to appeal, which accused her of misconstruing, overlooking, and/or misdirecting various matters, essentially refuting all of them.

The alleged unconstitutionality of the order

Xulu and BXI claimed that their access to the courts and right to appeal had been denied.

Pangarker noted the respondents’ “continued disobedience of the orders granted by the three Judges” in the previous court hearings.

Pangarker referred to the judgment in Burchell v Burchell in which the High Court ordered that “unless the party who was held in contempt purged his contempt, he ran the risk of being precluded from further litigation in that Court”. The Constitutional Court in SS v VV-S, agreed that such an order is “wholly appropriate in circumstances when one is dealing with conduct that may be described as contemptuous of the authority of the order issued by a court”.

Pangarker noted the “repeated non-compliance of the orders related to the Porsche”, and that Xulu and BXI are “quite entitled to their view that the R30 000 fine is Draconian”.

Pangarker finally noted that “Xulu and BXI, as well as his legal representatives, were treated with the utmost respect, and the respondents’ were granted two postponements for legal representation. The matter was considered objectively and my knowledge of the history of the matter was obtained from the application which came before me on 25 February.

Furthermore, Xulu’s lengthy complaint in his affidavit about his portrayal in the local media, with respect, has nothing to do with any grounds of appeal related to the contempt application.”

It appears that Xulu and BXI have now run out of all options.