After months of delays, Western Cape Judge President John Hlophe’s legal representative, Barnabas Xulu, has lost a bid to have a judge recuse himself as well as an appeal of an order that his personal and business assets be attached.
With the ruling handed down by Judge Ashley Binns-Ward in the Western Cape High Court on 30 March, Xulu has now also landed himself with hefty legal costs.
The excoriating and lengthy judgment makes for astonishing reading.
It sets out Xulu’s myriad attempts at delaying and obstructing the legal process, frustrating the court by failing to submit affidavits timeously, slipping a letter by Hlophe to the minister of justice into a bundle of documents ostensibly to influence another judge, as well as evading the execution of a sheriff’s order to attach his assets.
Despite the personal involvement of Hlophe, who stepped in in November 2020 to suggest to the Minister of Justice, Ronald Lamola, that a hand-picked judge in another division hear Xulu’s interlocutory application, Xulu has now run out of legal road in this matter.
Binns-Ward dismissed Xulu’s application for his recusal, with costs, “including the fees of two counsel and the wasted costs incurred by the second applicant [the Department of Environment, Forestry and Fisheries]” as a result of three postponements.
He also dismissed an application for leave to appeal orders made in the “anti-dissipation” application including the cost of two counsel.
In January 2020, Xulu was ordered by Judge Owen Rogers, of the Western Cape High, to repay R20-million in legal fees as 2017 and 2019 agreements between his firm, B Xulu and Partners Incorporated (BXI), and the Department of Agriculture, Forestry and Fisheries (Daff), as it was known, had been invalid.
Xulu has taken this judgment on appeal to the Supreme Court of Appeal (SCA).
In the meantime, an application for an “anti-dissipation” order of Xulu’s assets was sought by the Department of Environment, Forestry and Fisheries (Deff) in October 2020.
This had been done “on the basis of evidence that Mr Xulu was disposing of assets in order to frustrate the ability of the applicants [Deff] to execute any judgment they might obtain against him in the principal proceedings”.
In other words, Deff was asking for the courts to prevent Xulu from disposing of his assets while the no-small matter of the R20-million he owed to the state was a matter still pending at the SCA.
It was Hlophe himself who appointed, on an “ad hoc” basis in October 2020, a judge from the Eastern Cape Division, John Smith, to hear his lawyer’s matter.
This was after Xulu had sought Rogers’ recusal and also in light of the fraught atmosphere between judges in the Western Cape division.
In that instance, Smith issued a provisional order for the attachment of Xulu’s assets including a luxury home in an estate in Ballito, KwaZulu-Natal, a Porsche Carrera 911 GTS as well as his firm’s bank accounts.
Smith then withdrew from the matter, which was then heard by Binns-Ward, who, on 27 November 2020, confirmed Smith’s “anti-dissipation order”. Xulu has been running around in legal circles ever since, tying up various courts.
However, on Tuesday, even the 4,000-odd pages which accompanied Xulu’s lawyer’s submission for the recusal of Binns-Ward and the further application for leave to appeal the order granted by Binns-Ward on 27 November 2020, failed to persuade.
Xulu had demanded that Binns-Ward recuse himself, claiming the judge would be unable to apply his mind independently and had ulterior motives in hearing his matter.
This, said Xulu, was because Binns-Ward had been party to a complaint to the Judicial Service Commission along with nine other judges of the Western Cape Division, with regard to Hlophe’s alleged assault of fellow judge Mushtak Parker.
Xulu then brought three applications to set Smith’s order aside, the first on 16 October, which was struck off, while the second was withdrawn and the third dismissed on 28 October by Judge Hayley Slingers.
Binns-Ward said that on 27 November 2020 the provisional anti-dissipation order had come before him “in the ordinary course of the Third Division” and was the first of 63 matters for that day.
While Xulu had attributed an ulterior motive to Binns-Ward, the judge said that the file that had been placed before him had not contained anything other than the papers directly concerned with the interlocutory application.
However, on the afternoon of 24 November 2020, while he was reading through his roll for the following day, a notice of opposition was brought to his registrar together with a copy of a letter dated 16 November 2020 from Hlophe to the minister of justice.
Binns-Ward said he had already had sight of the letter as it had been attached to a Deff counsel practice note.
“I was not informed of the identity of the person who brought the aforementioned documents to my chambers. I requested my registrar to inform the person concerned that the documents could be raised with me in open court the next morning when the matter was called,” Binns-Ward noted.
It was Xulu, in his address to the court on 10 March 2022, said the judge, who had, however, revealed that the person who had brought the documents “was a candidate attorney employed by BXI”.
“Why an employee from his firm, rather than someone from his attorneys of record or their local correspondents should have brought the documents, and why a notice of opposition, together with opposing affidavits, had not been delivered timeously was not explained.”
Counsel who appeared for Xulu the following day, said Binns-Ward, had “limited instructions”, asking only for a postponement “without being able to provide any motivation”.
“She was unable to explain why the fifth respondent [Xulu] had not delivered answering papers notwithstanding having had more than five weeks’ notice of the return date,” said Binns-Ward.
Xulu’s legal representative had also been unable to “shed any light on the reason why I had been provided with a copy of the Judge President’s letter to the Minister along with the notice of opposition and, despite being given the opportunity to do so, could not obtain instructions in that regard.”
Binns-Ward said that the object of Xulu’s delivery of Hlophe’s letter to Minister Lamola “was to prevail on me not to deal with the matter on the return day”.
“It hardly bears stating that that was an entirely irregular manner of going about things,” said Binns-Ward.
Xulu, on the other hand, had argued that there had been an ‘agreement’ that no judge in the Western Cape could hear ‘any aspect of the proceedings’.
Not even a covering letter had been attached, if that had been Xulu’s object.
“If Mr Xulu believed that he had any valid reason to suggest that I should not deal with a matter on my roll, it behoved him to raise the issue formally, and on notice to the other parties in the case,” said Binns-Ward.
Also, it was also “quite extraordinary” that Xulu would appear not to have advised the lawyers who represented him on 25 November “that the letter had been delivered, or of his purpose in having done so”.
As it was, nothing in Hlophe’s letter had implied that Binns-Ward was “disqualified from dealing with the matter in the ordinary course”.
Xulu, on the other hand, had argued that there had been an “agreement” that no judge in the Western Cape could hear “any aspect of the proceedings”.
Binns-Ward said he was unaware of such an agreement “and had the existence of such an extraordinary agreement been drawn to my attention, I would probably have required to be addressed concerning its validity, for, on the face of it, any such agreement would go against the constitutional principle that judges are obliged to hear every case brought before then unless they are, for good reason, disqualified from doing so”.
Xulu’s own conduct by bringing proceedings questioning the validity of the orders made by Smith on 5, 12 and 15 October 2020, first before acting Judge Penelope Magona, and thereafter Judge Slingers, “both of them judges in this Division”, contradicted Xulu’s assertion “of the existence of any such agreement” with regard to judges in that division.
“At the very least it demonstrates that, if it exists, he invokes it selectively.”
Binns-Ward had ordered that Xulu deliver an affidavit explaining his non- compliance by 27 November 2020, whereupon Xulu had filed a notice of application for leave to appeal Binns-Ward’s order of the 25th.
“But he failed to deliver an affidavit as directed in that order. He also did not appoint counsel to appear for him on 27 November, although an attorney representing him was present in court.”
This attorney had informed Binns-Ward, “from the gallery” that Xulu had not delivered an affidavit as he was out of town.
Binns-Ward had stood down proceedings to arrange a hearing, but Xulu responded that he would only be available in a week’s time.
“I found that response unacceptable.”
Binns-Ward then confirmed Smith’s order.
Xulu again appealed and an agreement between parties set out a strict timeline for the filing of the application for recusal by 10 February as well as answering papers by 17 February 2021.
Suffice to say, no application was filed and Xulu’s lawyers at the time had informed the State Attorney, acting for Deff, that the application for recusal would be abandoned.
And so a legal ping-pong began with Xulu accusing Binns-Ward of denying him a last-minute virtual hearing. Later it emerged that Xulu’s Johannesburg counsel had given notice that ‘they no longer represented’ Xulu or his firm as ‘the attorneys had not been placed in funds to cover counsel’s fees’.
However, “on the morning of 4 March 2012, literally two minutes before I was due to go into court to hear arguments in the application for leave to appeal, I was informed that Mr Xulu intended to move an application for my recusal”.
And so a legal ping-pong began with Xulu accusing Binns-Ward of denying him a last-minute virtual hearing. Later it emerged that Xulu’s Johannesburg counsel had given notice that “they no longer represented” Xulu or his firm as “the attorneys had not been placed in funds to cover counsel’s fees”.
Xulu then appeared without counsel on 4 March and delivered answering papers on 5 March, but complained that he had been “rushed”, whereupon Binns-Ward gave him until 19 March.
Binns-Ward said that Xulu had suggested he was the victim of “some or other hostile conspiracy” by Rogers and a number of other judges in the Western Cape Division.
While his own lawyers had said he would be abandoning the application for recusal, Xulu’s application was brought at the eleventh hour. A recusal application, said Binns-Ward “is often a difficult and sensitive matter for the affected judge”.
Binns-Ward quoted the case Mulaudzi vs Old Mutual in which Xulu represented Mulaudzi and Hlophe assigned the matter to himself in 2016. Xulu himself referred to the matter in his papers.
In that instance the SCA found that Hlophe, a client of Xulu’s, did not act independently when he allocated the Mulaudzi matter to himself, refusing an application by the National Director of Public Prosecutions and Old Mutual to intervene in the matter.
Judge Nathan Ponnan ruled that Hlophe had not brought a fair and impartial mind to bear on the adjudication of the Mulaudzi matter.
Xulu had suggested that Binns-Ward should have “appreciated” that the appointment of Smith by Hlophe was “invalid on account of his [Smith] not being possessed of the relevant appointment in this division”.
“The suggestion, advanced in rather florid terms in the application for leave to appeal, that I should have of my own initiative investigated the validity of Smith J’s appointment is without merit.”
If he had considered it a matter that should have “engaged” his attention “he should have raised it on affidavit before me on the return day, or in the affidavit that he was called upon to submit in terms of the order I made on 25 November 2020”.
Binns-Ward said he was not persuaded that an appeal against the anti-dissipation order enjoyed a reasonable prospect of success and that there was nothing in the dissipation order that established any “compelling reason for it to enjoy the attention of a higher court on appeal”. DM