Cape Town – Western Cape Judge President John Hlophe’s lawyer Barnabas Xulu and his law firm have lost their bid to overturn the high court order forcing them to repay over R20.2 million.
Xulu and Barnabas Xulu and Partners Incorporated (BXI) had asked Western Cape High Court Judge Owen Rogers for leave to appeal against his judgment delivered earlier this year ordering it to return the R20.2m in legal fees paid by the agriculture, forestry and fisheries department for representing it despite having engaged Emang Basadi Legal and Forensic Services, which was forced to work with BXI.
The R20.2m was part of funds that were held in the department’s accounts with Standard Bank and FNB attached by the sheriff.
Judge Rogers refused Xulu and BXI’s application for leave to appeal with costs on Thursday.
Xulu has argued that the judge erred in ordering BXI to repay the R20.2m by the end of April this year and that he failed to exercise his discretion by not instead ordering that BXI’s bills of costs be taxed to enable the court to make a just and equitable order.
He argued Judge Rogers should not have accepted the department’s director-general Mike Mlengana’s version that his signature on the service level agreement had been fraudulently obtained as it was only raised for the first time in reply and ran contrary to objective facts.
Xulu also argued that Mlengana’s version was contrary to that of the department’s former fisheries management deputy director-general Siphokazi Ndudane, who is the head of the Eastern Cape department for rural development and agrarian reform.
Xulu also claimed Judge Rogers erred in finding the agreement between his law firm and the department invalid and reviewing and setting it aside.
He wanted the judge not to reject Ndudane’s version that she duly authorised the agreement.
Responding to Xulu’s attacks, Judge Rogers said his personal preference was irrelevant and the question to be determined was whether the appeal would have reasonable prospects of success.
”I would welcome the opportunity for an appellate court to assess the matter on appeal,” he said.
Judge Rogers has previously heard evidence that former agriculture, forestry and fisheries minister Senzeni Zokwana promoted BXI’s appointment and had already given it a mandate.
Political Bureau