Recusal requesters get legal mauling from Mkhwebane inquiry evidence leader

21 Oct 2022

An amateurish bid by Barnabas Xulu — Judge President John Hlophe’s lawyer — to force Section 194 inquiry evidence leader advocate Nazreen Bawa to recuse herself, bit the dust badly on Thursday.

Two earlier attempts at forcing recusals at the historic impeachment inquiry into suspended Public Protector Busisiwe Mkhwebane’s fitness to hold office — that of committee chair Qubudile Dyantyi and DA MP Kevin Mileham — have failed to derail the proceedings so far.

On Thursday, the inquiry’s evidence leader, Nazreen Bawa, presented her rebuttal to two letters of complaint sent to the committee by “activist” Chumani Maxwele and the United Democratic Movement (UDM) leader, Bantu Holomisa, seeking her recusal.

Maxwele, who is the coordinator of the “Black People’s National Crisis Committee”, marched to Parliament in August in support of Hlophe, who faces suspension pending an impeachment inquiry.

He also singled out News24 journalist Karyn Maughan and this writer in August at a press conference “addressing the racist persecution of Black Professionals by the White establishment”.

Xulu represented Maxwele in 2015 after he had been suspended from the University of Cape Town following an altercation with a lecturer.

What has Xulu got to do with Mkhwebane?

Bawa told the inquiry that both Maxwele and Holomisa — while neither had expressly indicated that they had done so — had relied, to concoct their bogus complaint, on an affidavit by Xulu “who has been embroiled in repeated litigation with the Department of Forestry, Fisheries and the Environment [DFFE]”.

Bawa — the prosecutor in the ongoing DFFE matter, which has suffered extraordinary delays and postponements and involves Xulu’s failure to repay R20-million to the state in unlawfully received legal fees — announced she would not recuse herself from the Section 194 inquiry.

Xulu had accused Bawa of “interfering” with court processes in which he was the prime suspect and accused.

“I do not require any space to deal with these vexatious allegations which, in a mischievous way, have been elevated to prima facie evidence,” Bawa told the committee.

Maxwele and Holomisa’s unsubstantiated allegations didn’t even meet “the lowest threshold” required to be taken seriously.

The relevance of Xulu’s matter to the Mkhwebane inquiry requires lateral thinking of a sort that can only be performed under the influence of a substantial dose of mind-altering substances.

There is not a shred of logic to the amateurish attempt at linking two disconnected matters. But in South Africa, all joined dots lead inevitably to former president Jacob Zuma. Xulu, after all, was a vocal supporter and fundraiser for the Friends of Jacob Zuma.

Rules, schmules

Both complainants, said Bawa, had used the same language as Xulu in his high court legal tome filed on 4 October. Their interest in the matter was puzzling, she added, as neither Holomisa nor Maxwele had any knowledge or interest in the Xulu/DFFE matter.

Rules, schmules.

Bawa said Maxwele and Holomisa appeared “to labour under some misconception that there exists a 407-page affidavit which, in its entirety, impugns my reputation and implicates me in some sort of criminality and to which I have some obligation to respond — whether in court or in some unspecified criminal or other process”.

Xulu has attempted to fell Bawa once before, with an unsuccessful complaint to the Legal Practice Council (LPC) on the same matter. Bawa was cleared.

However, not so Xulu, who faces two serious complaints with the LPC, one for the embezzlement of more than R1-million from his firm, Barnabas Xulu Incorporated’s (BXI’s) trust account.

In April 2020, three months after Judge Owen Rogers handed down a significant judgment citing the underappreciated State Liability Act, Xulu launched a blistering attack on the judiciary.

Hlophe’s lawyer accused 13-odd judges in the division who had written to the Judicial Service Commission (JSC) about Hlophe’s alleged assault of a colleague, Judge Mushtak Parker, in 2019, of engaging “in conduct that is prejudicial to the effective and expeditious administration of the business of the court”.

Meanwhile, both Parker and Hlophe will face JSC tribunals in the next century in relation to the assault.

A constellation of dunces

A familiar constellation of individuals who regularly feature in high-profile court dramas and who exist within Xulu’s orbit (apart from Hlophe) surfaced again on Thursday during Bawa’s testimony.

Paul Ngobeni for example, whom Xulu represented in 2011 when former Public Protector Thuli Madonsela investigated his qualifications and background.

Madonsela found unequivocally that: “Mr Ngobeni has failed to appear in Court in the State of Connecticut and he is a fugitive from justice in the United States of America.”

Xulu’s revived attack on Bawa more or less coincided with evidence led at the Section 194 inquiry that Mkhwebane had employed Ngobeni, who is not registered to practise law in South Africa, as her legal adviser at a cost of R87,000.

Ngobeni was also paid through Mkhwebane’s legal firm of choice, Seanego Attorneys, to pen “articles” critical of the judiciary.

Ngobeni had even advised Mkhwebane in the CR17 funding investigation, the inquiry has heard. That this might have contributed to Mkhwebane’s steaming pile of court losses has not been internalised by those fighting for her to keep her job.

Meanwhile, Ngobeni, who has been asked by the committee to respond to various questions and provide documentation referred to in evidence, took the opportunity to attack News24 journalist Karyn Maughan in his reply to the inquiry.

A strumpet with a trumpet

In a 26-page response, Ngobeni alleged that the questions that had been sent to him had been shared with Maughan — “a strumpet with a mendacious trumpet” — even before they had plopped into his inbox.

“I also take notice that Karyn Maughan, who has carved out a career as a political prostitute and is busy defending herself in the criminal prosecution by former President Zuma has upped the ante — she wants to be consistent with that role and be a strumpet with a mendacious trumpet in the case involving the Public Protector and myself,” quipped Ngobeni.

On Thursday, Bawa told the committee that the timing of the allegations in the Xulu affidavit of 4 October “is no coincidence”.

“Especially given that the affidavit was irregularly filed in the high court. It was clearly directed at this inquiry, hence it having been brought to the attention of the UDM.

“Prior thereto, Mr Xulu had taken no steps in furthering any complaint with the CBC [Cape Bar Council] or the LPC — his last communication with the LPC having been on 8 October 2021,” said Bawa.

After his name was mentioned during evidence to the commission, Ngobeni had been contacted to provide further documentation.

Ngobeni, said Bawa, had responded to two letters with a missive “foreshadowing some of the very same allegations, almost verbatim, that appear in the Xulu affidavit of 4 October”.

Who is Abel Ngobeni?

What neither Ngobeni nor Xulu had disclosed was that in 2020, “one of the BXI bank accounts which contained the R3.6-million (what remained of the R20 million) that Xulu/BXI was ordered to preserve, reflected payments made to a payee with the reference ‘Abel Ngobeni’,” said Bawa.

These payments had been made with funds that Xulu and his firm had been interdicted from spending, she reminded the committee.

“Abel Ngobeni is the same name of the bank account holder reflected on an invoice that had been rendered by Seanego Inc to the Office of the Public Protector reflecting services that ex facie [on the face of it] had been rendered by Mr Paul Ngobeni,” added Bawa.

There were also a number of “misrepresentations” (read fabrications) in Xulu’s affidavit where he had stated that Rogers’ judgment was the subject of an appeal at the Constitutional Court.

“This is incorrect. BXI/Mr Xulu have been denied leave to appeal by the WCHC [Western Cape High Court] and the SCA [Supreme Court of Appeal], and the President of the SCA declined to reconsider the SCA’s refusal to grant BXI’s petition,” she set out.

BXI then brought an application seeking condonation from the Constitutional Court to bring a late application for leave to appeal. This condonation application had never been granted and there was “thus no appeal pending before the Constitutional Court”.

How to spend R15m in a weekend

Bawa said given the number of cases and permutations of the long-running Xulu matter, “what has ensued may appear complex, but it is not.

“In a judgment handed down on 30 January 2022, it was held that BXI had unlawfully attached slightly more than R20-million from departmental bank accounts (public funds).

“Mr Xulu proceeded to spend approximately R15.5-million thereof between the Friday afternoon when the funds cleared and the Monday, when an urgent application was brought to preserve the funds. BXI was ordered to pay back the money and Mr Xulu was held to be personally liable jointly with BXI. To date, this payment has not been made; instead, litigation continues.”

That’s that. Case closed, the circus moves on.

The impeachment inquiry will now continue with more damning evidence expected from officials who worked with Mkhwebane’s legal department. DM

Categories:

Tags:

DM is much better if you are signed in...

Politics