Fisheries minister Barbara Creecy approached the Western Cape High Court in March 2020 seeking the setting aside of an order appointing Xulu’s firm, B Xulu and Partners INC (BXI), as one of two “implementing agents” in an over R100-million US repatriation settlement order in the Arnold Bengis “lobster” matter.

Hlophe issued the original order in September 2018 “in chambers”.

Creecy also stated in her affidavit that Xulu had verbally informed Hlophe, also “in chambers”, that he had been mandated personally by former Minister of Agriculture and Fisheries, Senzeni Zokwana, to represent the department of environmental affairs.

Creecy’s Notice of Motion in March 2020 set out an extraordinary series of events which led to Zokwana appointing Xulu. In March 2004, Bengis, and others, had entered into plea agreements in a US court after being convicted of “conspiracy to violate” US legislation with regards to smuggling of fish.

In 2013, Bengis and his co-accused were ordered by the US court to jointly and severally pay “the sum of $22,466,720 in restitution for the benefit of South Africa”.

Zokwana had appointed Xulu’s firm to represent South Africa in the Bengis matter but, argued Creecy, had had no statutory authority to do so.

Creecy said that she, along with current Minister of Agriculture Thoko Didiza, had only learned of the September 2018 order by Hlophe appointing Xulu’s firm after a January 2020 High Court Judgment by Judge Owen Rogers.

In that matter, the court ordered Xulu to repay R20-million in legal fees he had earned during the matter.

Creecy said the US settlement agreements had been “self-executing and did not require implementing agents”.

Xulu has now approached the court, requesting to be added as a respondent in the matter along with Bengis (who has since died), and his companies Pearl Investment Trading and First Trust Management AG. The applicants in the matter are the minister, the department of environment, forestry and fisheries (DEFF) and the National Prosecuting Authority.

In an affidavit, which Xulu himself described as “voluminous”, he set out that his firm “has a direct and substantial interest in the outcome of this case”.

Xulu accused Creecy of “rushing” to court when the issues, which underpinned what he termed a dispute, fell “within the collective responsibilities of the Ministers of the previous cabinet who gave their collective approval”.

He argued the dispute between his firm and the minister “is an inter-governmental one between the organs of State which would fall within the parameters of Chapter 3 of the Constitution”.

Xulu is referring specifically here to his appointment, by agreement, by former minister Zokwana, to represent South Africa and the DEFF in the repatriation settlement.

The matter, said Xulu, was one “between the NPA, Zokwana in his official capacity, the executive and cabinet”.

“I am of the opinion that there was an obligation on the Minister’s part to comply with the provisions of co-operative government in Chapter 3 of the Constitution before approaching this honourable court.”

The “remarkable boldness” of the applicants in bringing the court application “having so little knowledge of this matter”, had to be noted at the outset, said Xulu, sketching the battlefield.

“We remain completely perplexed as to why any minister would seek to rescind an order which sought to benefit her portfolio through the restoration of the marine ecological resources to the benefit of the fishing community at large,” said Xulu.

Xulu said he had vast experience and knew the fishing industry “and the big players while communities had no benefits”.

Creecy’s application to the court in March 2020 that the order issued by Hlophe appointing Xulu be set aside came in the aftermath of a landmark judgment by Judge Owen Rogers in January 2020.

In that matter, Rogers ordered Xulu to repay about R20-million in legal fees received by his firm from the DEFF. Rogers set out that the department had been entitled to free legal advice from the Office of the State attorney.

Xulu argued that there was no capacity in the office of the State Attorney to handle the Bengis matter and that the expert services of his firm had had to be procured urgently with Treasury agreeing to this deviation.

Creecy, he added, had misled the court as she knew, or ought to have known, “very well that deviations are allowed and are available for her to rectify what she claims are the defects in the procurement process”.

In fact, said Xulu, Treasury had “confirmed that a deviation process should be followed in order to regularise BXI’s appointment by Zokwana in Bengis and other matters to the Department’s Director-General Michale Mlengana”.

Hidden in this sentence is the heart of the matter. The deviation process was clearly not followed and neither had BXI’s appointment by Zokwana been “regularised”.

This is borne out by Xulu’s accusation that Creecy and the department’s director-general, Nosipho Ngcaba, had, in fact, refused to pursue a deviation process and instead had “sought to pursue a defamatory and false narrative against Zokwana and BXI through several applications before this honourable court”.

Creecy knew, said Xulu that “if in a specific case it is impractical to invite competitive bids, the accounting officer or accounting authority may procure the required goods or services by other means… provided that the reasons for deviating from inviting competitive bids must be recorded and approved by the accounting officer or accounting authority”.

The Bengis matter, said Xulu, had been complicated and the “facts of the difficulty and urgency of the Bengis litigation were explained to Treasury officials”.

The officials, said Xulu, “recommended that an application for deviation be submitted as they were satisfied that the appointment of BXI and unique services it performed for the country and department would qualify it for deviation”.

No one could discount, said Xulu, that his firm had facilitated “a landmark amount on behalf of South Africa, assisted in elevating South Africa on an international stage for their work in combating illegal, unreported and unregulated fishing”.

Creecy and Ngcaba had simply refused to act on the recommendation of Treasury and had not taken the “simple step” to facilitate the deviation, Xulu charged.

They had, instead, “invoked the Court’s powers to fight their own factional political battles instead of doing the job consistent with their respective oath of office as respective Executive and Accounting Authorities”.

In “rushing” to court, Creecy had disregarded the principles of co-operative government in terms of Section 40 (2) of the Constitution “which requires that all spheres of government must observe and adhere to the principles of cooperative government and conduct their affairs within the parameters of Chapter 3”.

The dispute should have been resolved in-house, internally, without having to involve the courts, claims Xulu.

Quoting Section 41 (3) and 41 (4) of the CGA, Xulu said these provided peremptory guidance that organs of state involved in an intergovernmental dispute “had to make every reasonable effort to settle”.

There were various means and mechanisms which enabled this, he said, but which Creecy had ignored.

Creecy, in approaching the court, had sought to have declared as “invalid” Cabinet decisions and policy decisions by Zokwana, “as approved by both Cabinet and Parliament and she seeks to abuse the courts to accomplish such unlawful process”.

Xulu accused Creecy of seeking, in her affidavit in the notice of motion to “rubbish the work performed by Zokwana, BXI and the Asset Forfeiture Unit”, in recovering the R123-million.

He said the minister had found herself “caught up in a political factional battle within the ANC,” and had made statements which had painted BXI “in an unfavourable light and would adversely affect our reputation should we not be afforded the right of reply in this matter”.

Creecy, said Xulu, had refused to have a hand-over briefing with Zokwana and had also rejected his firm’s submission and request for a consultation to brief her on active litigation and projects within the department, including the Bengis matter.

The minister had rushed to court to “regulate gossamer” instead of “reliable facts”, which had been readily available.

There is clearly no love lost between Xulu and Creecy as evidenced in Xulu’s description of her as “haughty” and a covert suggestion that she might be racist.

“I am also forced to point out that the problem is not only the haughtiness displayed by the Minister in dealing with both BXI and Zokwana, but it is also fundamentally a larger issue of an untransformed view of an inexperienced Minister in a foreign portfolio, who does not believe that the equality provision of our Constitution should apply to all citizens regardless of race.”

Creecy should not be allowed, said Xulu, to “multiply court proceedings and litigate peripheral and irrelevant issues” when she was in defiance of Hlophe’s court order. DM