Hlophe attorney Barnabas Xulu fails in bid to appeal R20m legal fees order

Barnabas Xulu's law firm has failed in its application for leave to appeal a judgment that it must pay back R20m to the department of agriculture, forestry and fisheries.
Barnabas Xulu's law firm has failed in its application for leave to appeal a judgment that it must pay back R20m to the department of agriculture, forestry and fisheries.
Image: VATHISWA RUSELO

Barnabas Xulu, the attorney representing Western Cape judge president John Hlophe, has failed in a bid to appeal against a court ruling that his law firm repay R20m to the department of agriculture, forestry & fisheries.

Western Cape High Court judge Owen Rogers in January declared invalid and set aside a service level agreement purportedly signed between the department and B Xulu & Partners Inc (BXI) on May 23 2017.

Rogers also declared invalid and set aside a settlement agreement — between the department and BXI on April 2019  — whereby the department agreed to pay the law firm R20m for services rendered.

Rogers ordered BXI to pay the department R20.2m.

In its application for leave to appeal, the law firm and Xulu said Rogers erred in finding that the service level agreement was invalid.

They said the court should not have accepted department director-general Mzamo Mlengana's version that his signature on the agreement was fraudulently obtained.

In his judgment sent to the parties on Thursday, Rogers said the advocate for the law firm and Xulu acknowledged during argument that the service level agreement had correctly been found to be invalid for non-compliance with proper procurement procedures.

Rogers said the advocate for Xulu and BXI conceded that, on the evidence placed before him, the court correctly found that the department's deputy director-general of fisheries management, Siphokazi Ndudane, was not authorised to sign the settlement agreement and for this reason it was invalid.

“I have thus come to the conclusion that the proposed appeal does not enjoy reasonable prospects of success,” Owen said, as he refused the application for leave to appeal with costs, including the costs of two counsel.

In his judgment, Owen said he understood that an application for his recusal by BXI and Xulu in March had been rendered moot by the allocation of outstanding matters to another judge. 

The outstanding matters were an application by Ndudane for the reconsideration and setting aside of Rogers' judgment, and an application by former environmental affairs minister Senzeni Zokwana, BXI and Xulu for rescission of the same judgment.

“It was thus much to my surprise that, just a few minutes before we entered court on September 3 2020, my registrar received a letter from Mr Xulu stating that ‘following extensive consultation’, he and BXI submitted that 'the matter of recusal is paramount and must be decided before all other issues'.”

Rogers ruled on the day he could not hear Xulu further in support of the recusal application.

“My reasons were briefly this. BXI and Mr Xulu’s attorneys had unequivocally stated on August 3 2020 that BXI and Mr Xulu did not seek my recusal from the application for leave to appeal. There had been no change of circumstances since then,” Rogers said.

Xulu has represented Hlophe in a lengthy battle to have him impeached.

TimesLIVE


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