‘Senior judge broke the law’

By Aishah Cassiem Time of article published Nov 18, 2020

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Durban - Top Durban lawyer Barnabus Xulu scored a one-up in his battle with Eastern Cape High Court Judge John Smith, who has been removed from dealing with his case after it surfaced that he had unlawfully overstepped his jurisdiction when he granted three orders which resulted in Xulu’s assets being frozen by authorities.

Smith was previously deployed to the Western Cape High Court where he oversaw a matter between Xulu’s law firm and the Department of Agriculture, Forestry and Fisheries (Daff).

Xulu’s law firm, Barnabas Xulu Incorporated (BXI), was informed by court officials on Monday that Smith no longer handles the case and had been removed just hours after they (BXI) had written to Western Cape High Court Judge President John Hlophe and Eastern Cape High Court Judge President Selby Mbenenge questioning Smith’s appointment and “unlawful” judgments in this matter.

In the letter, which Independent Media’s special investigation unit has seen, BXI stressed that Smith had also imposed orders which never existed in the case and instructed that all the orders be granted in his capacity as an acting judge in the Western Cape High Court.

However, none of the matters heard by Judge Smith was enrolled on the Western Cape roll.

“We strongly believe that there has been an abuse of the allocation process here as Smith is said to have been removed in a similar and associated case in the Eastern Cape division. We urgently require the honourable judge presidents’ confirmation regarding whether Smith held the authority and jurisdiction to hear and preside on the orders and whether Smith has the authority to preside over the matters set down before him, on 16 November and over 25-26 October,” the letter stated. On October 15, Judge Smith had in the Cape Town court ordered that Xulu’s firm’s bank accounts be frozen, and for his Sheffield Beach property and Porsche to be seized, to cover for the R20.2 million owed to Daff. Xulu’s attorneys, who had approached the same court twice with an urgent application to stop the order as BXI’s staff, clients and debt were left unpaid, were unsuccessful in both their attempts.

However, according to a letter which Independent Media had published previously, signed by Hlophe, it confirmed that Judge Smith was not deployed in the Western Cape at the time he granted the orders and that his term had expired months before that.

This led to Judge Smith’s court orders being questioned. Xulu’s attorney said that Judge Smith ran a parallel roll whereby he subjected himself to either the demands or directions of the State attorney to grant illegal orders sitting as a member of the Western Cape High Court and in the absence of the applicant.

“The norms and standards dictate that allocations of matters are determined by the head of the court of that particular division. The head of court will be responsible for determining the sittings of each court, subject to the directives of the chief justice.

“Any assignment must be made by the head of court who must assign judicial officers for the hearing of cases. Such allocation must be done in a fair, equitable and balanced manner and as far as practicable be affected in a transparent and open manner. Exchange of cases between judicial officers is to be done through the head of the court.

“Smith engaged in unlawful Durban conduct by running a parallel roll in granting far-reaching prejudicial ex-parte orders as a sitting judge of the Western Cape High Court in the absence of the applicant. He did this to the exclusion of Mbenenge of the Eastern Cape who had not granted authority.

“The mere fact that Smith allocated matters to himself can amount not only to gross misconduct but also amounts to an act of corruption.” Meanwhile, Judge Smith said he had not been dismissed from the case.

“It is not true I have been removed from the case. I have decided to withdraw to avoid the peripheral issue pertaining to the scope of my acting appointment preventing the expeditious finalisation of core legal disputes between the parties. I was of the view this was in the best interests of the litigants.” Both judges Hlophe and Mbenenge did not respond by the time of publication.

Independent Media Investigations Unit

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