Barnabas Xulu, the attorney of embattled Western Cape Judge President John Hlophe, was handed a R30 000 fine and 30-day suspended sentence after he was found in contempt of six court orders relating to the repayment of R20-million in disputed legal fees to the state.
In a ruling handed down on Tuesday, Acting Judge Mas-Udah Pangarker said Xulu and his law firm BXI flouted section 165 (5) of the Constitution, which makes court orders binding on all persons to whom it applies.
“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 … 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.”
In a dispute that dragged on for just under two years, Pangarker found that Xulu and BXI had repeatedly placed themselves in contempt by flouting successive orders relating to the preservation of the funds and attachment of property while litigation on the return of money to the department of environmental affairs was ongoing.
The matter dates back to mid-2019, when BXI got a court order compelling the department to pay it more than R20-million for services rendered to the Marine Living Resource Fund.
After its failure to pay, writs of execution were issued and funds taken from various departmental bank accounts to honour the law firm’s invoices.
But in August that year, the department approached the high court in the Western Cape to have the service level contract, the settlement agreements and the wits set aside. BXI and Xulu, in his professional and personal capacity, was then given until April 2020 to refund the money.
Xulu unsuccessfully sought the recusal of Judge Owen Rogers and Ashley Binns-Ward as well as leave to appeal.
His stance has remained that only Judge Philip Zilwa, of the Eastern Cape division, was allowed to adjudicate on the matter as per a request from Hlophe to Justice Minister Ronald Lamola that no judges in the Western Cape should be allowed to hear it.
BXI had been ordered to transfer R3.4-million of the disputed fees earned from the department and held in a forex account into an attorney’s trust investment account by way of preservation, while Xulu challenged the validity of orders pertaining to his personal liability. Instead, the money was largely dissipated.
Similarly, BXI was ordered to maintain the balance of its trust account at no less than R380 000 but it dipped below this minimum on seven occasions.
Eventually the department approached the high court for a contempt order, a suspension of further litigation order and a fine and suspended jail term for Xulu. The department indicated that it did not seek imprisonment per se, but only should the attorney fail to respect an order to surrender his Porsche 911 Carrera.
The court had, on 5 October last year, ordered that R3.4-million plus interest be paid to the state attorney by the end of the day.
In the same month, it also issued an order that, pending the final determination on Xulu’s challenge regarding his personal liability to ensure repayment of the R20-million, the sheriff of Cape Town must attach the vehicle.
Farce ensued as four attempts by the sheriff to serve a writ of attachment on Xulu failed, prompting the court to authorise the sheriff to enlist a tracking service to locate the car. But attempts, both to find the car and to contact Xulu, including through his lawyers and his wife, proved fruitless.
In November, the deputy sheriff confronted Xulu at his home in Fresnaye, at which the attorney sped off in another car.
Referring to the matter as “the Porsche saga”, Pangarker said Xulu was obliged to comply with the court order to surrender the car, regardless of whether he agreed with it, and it was alarming that he fled from the deputy sheriff seeking to execute the writ.
Xulu did not dispute that orders were granted against him, or deny that he and his law firm failed to comply with these. Hence, Pangarker said, the court had to decide whether the third requirement of contempt, namely that orders be flouted wilfully and in bad faith, was present.
Regarding the attachment order, he found that the deputy sheriff’s account of Xulu absconding plainly proved mala fide conduct His law firm had in dissipating funds similarly wilfully disobeyed a court order, the judge 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.
“The conclusion is that BXI and Mr Xulu have violated the integrity and dignity of the court through their conduct. Mr Xulu’s refusal to surrender the Porsche was contumacious and his conduct is to be deprecated. Ultimately, the conduct displayed by the respondents undermined respect for and obedience to the law.”
Xulu was given until noon on Friday to surrender his Porsche. Either he or his law firm have to pay the fine by the same deadline. His prison sentence was suspended for three years.
Pangarder said he would send a copy of the ruling to the Legal Practice Council.
The ruling comes exactly one month before Hlophe is due to make representations before the Judicial Service Commission on June 4 on a finding by its conduct tribunal last month that he committed gross misconduct in 2008 by attempting to influence two constitutional court justices in favour of then aspirant president Jacob Zuma.
The JSC has to decide whether to endorse the tribunal’s recommendation that he be impeached. Xulu has told the media that Hlophe could challenge the finding in court.