Department of Environmental Affairs, Forestry and Fisheries v B Xulu & Partners Incorporated and Others (6189/2019) [2021] ZAWCHC 59 (30 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA

WESTERN CAPE DIVISION, CAPE TOWN

Case no.: 6189/2019

Before: The Hon. Mr Justice Binns-Ward

Hearing: 1 February; 4-5, 10 March 2021

Judgment: 30 March 2021

In the matter between:

THE DEPARTMENT OF ENVIRONMENTAL AFFAIRS,

FORESTRY AND FISHERIES

Second Applicant

and

B XULU & PARTNERS INCORPORATED

First Respondent

INCOVISION (PTY) LTD

Second Respondent

SETLACORP (PTY) LTD

Third Respondent

FIRST NATIONAL BANK OF SOUTH AFRICA

Fourth Respondent

BARNABAS XULU

Fifth Respondent

INVESTEC BANK LTD

Sixth Respondent

REGISTRAR OF DEEDS, PIETERMARITZBURG Seventh Respondent

In re:

THE DEPARTMENT OF AGRICULTURE, FORESTRY

AND FISHERIES

First Applicant

FORESTRY AND FISHERIES

Second Applicant

THE SHERIFF, PRETORIA CENTRAL

Second Respondent

STANDARD BANK OF SOUTH AFRICA

Third Respondent

BARNABAS XULU

Fifth Respondent

JUDGMENT

(Delivered by email to the parties’ legal representatives and by release to SAFLII.

The judgment shall be deemed to have been handed down at 11h00 on

30 March 2021.)

BINNS-WARD J:

[1] The matters requiring determination at this stage are an application for my recusal by Mr Barnabas Xulu, the fifth respondent in these proceedings, and B Xulu & Partners Incorporated (‘BXI’), the first respondent - a law firm at which Mr Xulu is a practising attorney, and, in the event of that application being refused, an application for leave to appeal[1] against an order granted by me on 27 November 2020 confirming an anti-dissipation order made by Smith J, provisionally albeit with immediate interim effect, on 12 and 15 October 2020.

[2] The anti-dissipation order is an interlocutory injunction in proceedings currently pending against Mr Xulu (‘the principal proceedings’) in which he has been required to show cause why he should not be declared jointly and severally liable with BXI to pay R20 242 472.90 to the Departments of Agriculture, Forestry and Fisheries and of Environmental Affairs, Forestry and Fisheries (‘the applicants’). The anti-dissipation order was sought on the basis of evidence that Mr Xulu was disposing of assets in order to frustrate the ability of the applicants to execute any judgment they might obtain against him in the principal proceedings. As is usually the case in such matters, the application for the anti-dissipation order was brought without notice to the respondents.

[3] The matters up for determination now can properly be understood only with an adequate appreciation of the context in which they have arisen. For that reason, a quite extensive rehearsal of the historical background is necessary.

The historical context

[4] The order made by Smith J on 12 October 2020 provided as follows insofar as currently material:

‘4. A rule nisi is issued calling upon all interested parties to show cause, on 25 November 2020 or as determined otherwise by this Court, why the following order should not be made in the following terms:

4.1 That pending the final determination of the rule nisi proceedings at which the Fifth Respondent is called on to show cause why he should not be ordered to pay the amount of R20 242 472,90

jointly and severally with the First Respondent, that:

4.1.1 The Second, Third and Fifth respondents, their agents and representatives ... are restrained and interdicted from removing or transferring funds, or in any manner utilising, dissipating transferring, withdrawing, or reducing the monies held in any bank accounts in the name of the Second, Third and Fifth Respondents, including to the extent applicable, all monies received or receivable in future, save with leave from this Court, on notice to the Second Applicant;

4.1.2 The Fourth and Sixth respondents are interdicted and restrained from clearing the transfer or withdrawal of any monies or assets from any bank and/or investment accounts or otherwise, including but not limited to the aforestated in relation to the Second, Third and Fifth respondents, or in relation to any bank account in the name of any other entity over which the Fifth Respondent exercises any control;

4.1.3 The Second and Fifth Respondents, its agents and representatives are forthwith restrained and interdicted from alienating or transferring out of the Second Respondent’s name, or in any way encumbering, mortgaging, dissipating or reducing the value of:

4.1.3.1 The property located at Erf 1521 FU Portion Number 667 in the Municipality of KwaDukuza, KwaZulu-Natal, held by T357/2018 commonly referred to as 35 Sheffield Beach Estate; Sheffield Beach, Ballito, KwaZulu-Natal (“the Sheffield property”); and

4.1.3.2 Removing any movable property from the Sheffield property.

4.1.4 The Sheriff where the property is located is directed immediately to access the aforementioned Sheffield property, take a full inventory of the contents of the property and to secure the contents of the Sheffield property;

4.1.5 the Seventh Respondent is ordered to register the interdict set out in paragraph 4.1.3 against the Sheffield property’s title deeds.

4.1.6 The Sheriff, Cape Town is directed immediately to take possession of the Porsche 911 Carrera GTS registration number CA 3302 for safekeeping.

4.1.7 the Fourth and Sixth respondents are directed to provide to the Second Applicant bank statements relating to all accounts held by the Second, Third and Fifth Respondents, or in relation to any bank account in the name of any other entity over which the Fifth Respondent exercised or exercises any control, if any, for the period 1 July 2019 to date.

4.2 ...

4.3 That paragraphs 4.1.1 -4.1.6 shall operate as an interim order with immediate effect pending the return date of the rule nisi.

5. That the orders granted in this matter shall be effective until the judgment in the main application under the above case number of R20 242 472,90 is settled in full, alternatively, until the proceedings in relation to personal liability of the Fifth Respondent is entirely finalized.

6. That any of the Respondents are given leave to anticipate the return day on 3 working days’ notice in writing to the Second Applicant’s attorneys, which notice must be served on such offices as well as to the registrar of Smith J ....

7. That the Respondents may also by notice set down the matter for reconsideration or variation of this order on 3 working days’ notice in writing to the Second Applicants attorneys, which notice must be served on such offices as well as to the registrar of Smith J ... .’

Smith J made a further order on 15 October 2020 amplifying, and giving directions for the execution of, the order he had made three days earlier. The ‘rule nisi proceedings’ referred to in paragraph 4.1 of the order made on 12 October 2020 related to an order made by Rogers J on 30 January 2020 in the abovementioned principal proceedings. Part of the latter order directed that Mr Xulu be joined as a fifth respondent in the principal proceedings and provided for a rule nisi to be issued calling upon him to show cause on 12 March 2020 why he should not be ordered to be jointly and severally liable together with BXI to pay the aforementioned amount of R20 242 472,90 to the applicants.[2] As will appear, the subsequent proceedings before Smith J proceeded directly or indirectly from the timetable directions given by Rogers J on 12 March 2020.

[5] The orders made by Smith J were duly served on the fifth respondent in the manner authorised by the order of 12 October.

[6] The fifth respondent did not comply with the order. On the contrary, the returns lodged by the sheriff suggest that Mr Xulu actively evaded execution of the order when the sheriff attempted to take into possession the Porsche motor vehicle. I understood from the material placed before me on the return day that Mr Xulu had brought three applications seeking to have the order set aside. I have not read the papers in those applications, but it was evident from the material before me in November 2020 that the first such application, on 16 October 2020, was struck off by Magona AJ, reportedly on the grounds that a case for urgency had not been made out, the second was withdrawn, and the third was dismissed by Slingers J on 28 October 2020.

Only the judgment of Slingers J was made available to me on the return day.

[7] The return day of the provisional anti-dissipation order came before me in the ordinary course in the Third Division (i.e. the unopposed motion court). It was number 1 on my roll of 63 matters for that day. It was not necessary that I apprise myself of the content of the papers in the principal proceedings (which, judged from the pagination, then already exceeded 4000 pages) because the supporting papers in the anti-dissipation application sufficiently contextualised the matter for the purposes of the interlocutory relief sought by the second applicant. The file placed before me therefore did not contain anything other than the papers that were directly concerned with the interlocutory application. That was understandable. Having regard to the volume of matters on the daily unopposed motion roll, it would have been beyond the capacity of the duty judge in the time available to read the papers in the principal proceedings having regard to the dozens of other matters to be heard on the duty judge’s roll.

[8] There were no opposing papers in the file, but the second applicant’s counsel had lodged a practice note setting out, with reference to an attached batch of correspondence, what appeared to be a somewhat contentious history concerning the allocation of the case. It was evident from the correspondence attached to the applicants’ practice note that Smith J, who ordinarily sits in the Eastern Cape Division, had been given an ad hoc appointment in the Western Cape Division at the instance of Hlophe JP after the matter had been removed from Rogers J (whose recusal was at the time being sought by Mr Xulu, inter alios). It was also evident from the correspondence that, subsequent to having granted the provisional anti-dissipation order, Smith J had withdrawn from having anything to do with case no. 6189/19, in the context of a dispute between the parties over the ambit of his appointment, and that an approach had then been made by the Judge President to the Minister of Justice to appoint Mr Justice

Zilwa (also of the Eastern Cape Division) to preside in ‘another application involving BXI’. I did not apprehend from that that the Judge President’s letter that there was anything precluding me from dealing in the ordinary course with return day of the anti-dissipation order. I did not pay detailed attention to the surrounding circumstances, and focussed instead on the case for anti-dissipation relief set out in the ex parte application brought before Smith J. I was satisfied upon a consideration of the supporting papers in that application that a proper case for the relief sought had been made out.

[9] There was no indication in the papers when I read them that the fifth respondent intended to oppose the confirmation of the anti-dissipation order. On the afternoon of 24 November 2020, however, while I was still engaged in reading the rest of my roll for the next day, a notice of opposition was brought to my registrar, together with a copy of a letter, dated 16 November 2020, from the Judge President of the Western Cape Division to the Minister of Justice in the following terms:

APPOINTMENT OF JUDGE ZILWA OF THE EASTERN CAPE DIVISION OF THE HIGH COURT AS AN ACTING JUDGE IN THE WESTERN CAPE HIGH COURT

“Department of Agriculture, Forestry and Fisheries and another // B Xulu and Partners Incorporated and 5 Others, WCHC case number 6189/19”

I refer to the above and previous correspondence relating thereto. Would the Minister, please appoint Phillip Horatius Sigqibo Zilwa, J to act as a judge in the Western Cape High Court to hear another application involving BXI. Smith, J was appointed to hear other applications and he may not hear another application involving the parties.

I have discussed the matter with Mbenengwe JP of the Eastern Cape Division and he has kindly agreed that Judge Zilwa should be appointed by the Minister to hear another application involving BXI.

Kindly appoint Zilwa J as a Judge in the Western Cape High Court at you (sic) earliest convenience.

Yours sincerely

[signed]

HLOPHE JP

The letter had actually already come to my notice by virtue of a copy thereof having been included in the aforementioned batch of correspondence attached to the applicants’ counsel’s practice note.

[10] 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. That is my general policy when persons seek to introduce additional matter into the court file after the motion court roll has closed, and particularly so when I have already read the file and moved on to other matters. Mr Xulu mentioned during his address on 10 March 2021 in support of the application for my recusal that the person who 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.

[11] Counsel appearing for Mr Xulu on the return day appeared to have very limited instructions. She merely asked for a postponement without being able to provide any motivation in support of the request. She was unable to explain why the fifth respondent had not delivered answering papers notwithstanding having had more than five weeks’ notice of the return date. Counsel was also 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.

[12] It became apparent from Mr Xulu’s address on 10 March 2021 in support of the application for my recusal that the object of delivering the Judge President’s letter to the Minister to my chambers 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. There was

not even a covering letter to explain that that was his 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. It is also quite extraordinary that Mr Xulu would appear not to have advised the lawyers who represented him before me on 25 November that the letter had been delivered, or of his purpose in having done so.

[13] As it was, nothing in the content of the Judge President’s letter implied that I was disqualified from dealing with the matter in the ordinary course. However, during his address in support of the application for recusal, Mr Xulu suggested that there had been ‘an agreement’ that no judge of this Division could hear any aspect of the proceedings under case no. 6189/19. This was also mentioned in his counsel’s heads of argument. Suffice it to say that I am unaware of any such 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 them unless they are, for good reason, disqualified from doing so.[3] Be that as it may, Mr Xulu’s own conduct by bringing proceedings to impugn the orders made by Smith J in case no. 6189/19

on 5, 12 and 15 October 2020, first before Magona AJ, and thereafter Slingers J, both of them judges in this Division,

contradicts his assertion of the existence of any such agreement. At the very least it demonstrates that, if it exists, he invokes it selectively.

[14] Despite being of the view that I was not precluded from dealing with the matter, I nevertheless suggested to the applicants’ counsel that, in the light of the apparent intention that Judge Zilwa of the Eastern Cape should deal with the principal proceedings, it might be convenient to extend the return date so that he could dispose of it. I pointed out that the rule issued in terms of Smith J’s order operated as an interim interdict pending the finalisation of the interlocutory application on the return day and I could therefore see no prejudice to the applicants if that were done. I mention this in particular because Mr Xulu suggested during his argument in support of the application, despite the contention not having been foreshadowed in his supporting affidavit, that the matter had come before me on 25 November by way of some of other ‘manipulation’;

thereby implying, without a shred of supporting evidence in his papers, that I had especially wanted to have the case before me.

[15] The applicants’ counsel resisted my suggestion. They submitted that in the face of Mr Xulu’s unexplained non-compliance with the extant order I was duty bound to deal with the return day of the anti-dissipation application consistently with the approach enjoined in the Constitutional Court’s judgment in SS v VV-S [2018] ZACC 5 (1 March 2018); 2018 (6) BCLR 671 (CC). I invited Mr Xulu’s counsel to comment on the contended effect of SS v VV-S, but she declined to do so. Having been persuaded, after consideration of that judgment, that the applicants’ counsel’s contentions were well-made, I made an order calling on Mr Xulu to deliver an affidavit explaining his non-compliance, and extended the rule to Friday, 27 November 2020.

[16] Mr Xulu thereupon promptly filed a notice of application for leave to appeal the order that I made on 25 November, 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. The attorney informed me from the gallery that Mr Xulu had not delivered an affidavit because he was not in Cape Town at the time. He indicated that Mr Xulu was available to be heard via Zoom if required. No indication was given as to what Mr Xulu might wish to say if afforded a remote hearing. It was also not explained why Mr Xulu could not have submitted an affidavit electronically from wherever he was outside Cape Town. I nevertheless stood the proceedings down for the applicants’ legal representatives to investigate the feasibility of setting up such a hearing. They reported back in the afternoon that whilst they had been able to set up a virtual hearing to take place that afternoon, Mr Xulu had indicated that he would be available for such a hearing only in a week’s time.

I found that response entirely unacceptable.

[17] In the circumstances, having regard to the approach enjoined in the Constitutional Court’s judgment, and being unimpressed by Mr Xulu’s failure to have delivered answering papers or comply with the order made on 25 November, I made an order confirming the provisional order made by Smith J. As I made clear at the time in the ex-tempore reasons for making the order, I considered that the fifth respondent’s notice of application for leave to appeal did not have the effect of suspending either the order that I had made on 25 November or that made earlier by Smith J.[4] I also indicated at the time that if Mr Xulu were able to show good reason, the appropriate manner of obtaining the setting aside or variation of those orders would be by way of an application to this court for rescission or variation, not by appeal.

[18] On 22 December 2020, a further application for leave to appeal was lodged. It is unnecessary to set out the grounds of the application because they were effectively jettisoned when a substantially amended application for leave was subsequently filed in circumstances that I shall describe below.

[19] The application for leave to appeal was set down for hearing on Monday, 1 February 2021, which was a date convenient to the court and to the parties’ legal representatives. Less than an hour before the hearing was due to commence, I was presented in chambers with an amplified and amended application, which substituted the previously advanced grounds with various new ones. The grounds for the application, as ultimately settled, were the following (I summarise):

1. That the court had erred (i) in failing to take into account that the orders made by Smith J were ‘pro non scripto and unenforceable’ by reason that Smith J did not hold a valid appointment in the Western Cape Division when he made them and (ii) in failing of its own initiative to ascertain the status of Smith J when he made the orders.

2. By failing to realise that the decision in SS v VV-S supra, ‘applied only in the case of legally and validly handed down judgements and orders’.

3. By having failed to recuse myself because, so it was stated:

i. I was co-complainant against Mr Xulu in a professional misconduct matter that had its origins in the judgment of Rogers J delivered in January 2020 (‘the main judgment’) ‘and the events that transpired ... after the main judgment’;

ii. I ‘was aware or reasonably ought to have been aware that [my] and other judges’ stance against Xulu led to the appointment of Smith J from the Eastern Cape to be appointed to act in matters involving Xulu on 22-26 June 2020’;

iii. I was ‘aware or reasonably should have been aware of a memorandum drafted and sent by Rogers J where he expressed his disqualification to preside over matters involving Xulu as a result of the complaint’;

iv. I was ‘aware or reasonably ought to have been aware that … the rule nisi applications (sic) that served before [me] on 25th and 27th November 2020 originated from the main judgment of the Learned Judge Rogers’;

v. ‘It was reasonable to infer having regard to the complaint filed with the Legal Practice Council on 17th December 2020 that [I] was on considering (sic) on both the 25th and 27th November 2020 contemplating (sic) or had already taken a decision with other Learned Judges to file a complaint against Xulu with the Legal Practice Council’;

vi. That I had a duty before hearing the application to disclose my ‘interest in the matter arising from [my] position as the co-complainant against Xulu’; and

vii. That I had for the foregoing reasons been disqualified from hearing the application.

[20] It was apparent from the added grounds that Mr Xulu was contending that I should, of my own initiative, have recused myself from hearing his matter on the return date. I pointed out to his counsel (Mr Khoza SC) that if the point was being advanced with earnestness, it would of necessity imply that I should also not be hearing the application

for leave to appeal; for if I were reasonably considered to have been incapable of bringing a judicial mind to bear on the case in November 2020, I could hardly be thought to be able to do so in February 2021. I therefore required an unequivocal indication before the matter proceeded further whether or not Mr Xulu sought my recusal. I made it clear that I would not entertain argument on the application for leave to appeal until I had received it. I also indicated that if there were to be an application for my recusal, I would require it to be in writing.

[21] After taking instructions, Mr Khoza, who appeared for both BXI and Mr Xulu,[5] informed me that that an application for my recusal would indeed be brought. I thereupon requested counsel for the parties to agree a timetable for the further conduct of the matters and, in accordance with the arrangements they proposed, made an order in the following terms postponing the matter to 4 March 2021 for the hearing of argument in the intended recusal application and the application for leave to appeal:

‘BY AGREEMENT BETWEEN THE PARTIES IT IS ORDERED:

1. The First Respondent (the applicant in the applications for leave to appeal) will file its application for recusal by no later than 10 February 2021.

2. The second applicant (the respondent in the application for leave to appeal) will file its answering papers on 17 February 2021.

3. The first respondent will file its reply on 24 February 2021.

4. The applicant will file its heads of argument on 26 February 2021.

5. The respondent will file its head's argument on 2 March 2020 (sic).’

The reference to ‘the first respondent’ in the order (which was drafted by the parties’ legal representatives) connoted BXI and not Mr Xulu personally. I was at all times under the impression, however, that it was Mr Xulu, and not his firm, that was seeking my recusal. My apprehension was founded not only on the apparent basis for the complaint that I should recuse myself (i.e. that I was party to a complaint of professional misconduct against Mr Xulu) but also because the order made by Smith J and confirmed by me was, in the relevant respects, directed at the fifth respondent and the second and third respondents being entities controlled by him. At the time I signed the order the fact that it described the party intending to apply for my recusal as Mr Xulu’s firm rather than him personally escaped my notice. Nothing turns on this because, as confirmed by him at the hearing on 10 March 2021, there is a complete identity of interest between Mr Xulu and his firm in the matter of my recusal.

[22] An application for my recusal was not filed by 10 February 2021, as provided for in terms of the order made by agreement on 1 February 2021. Instead, on 11 February, the attorneys representing Mr Xulu (Mathopo Attorneys Inc.) informed the State Attorney, who acts for the applicants in the principal proceedings and in the anti-dissipation matter, that the indicated intention to bring such an application had been abandoned. The State Attorney was also advised that an application would be made to

rescind the orders made by Smith J and me. Upon being told about those developments I caused the parties to be informed that it seemed to me that an application for rescission would render the pending application for leave to appeal redundant, save as to costs; and that if the parties were unable to settle the costs, I would be inclined to dispose of that question on the basis of written submissions without a court hearing.

[23] Mr Xulu and his firm did not withdraw the application for leave to appeal. Nor did their legal representatives respond to my registrar’s email concerning the apparent redundancy of the application for leave to appeal. The applicants, who appeared anxious to obtain finality, submitted an emailed request for directions as to the further conduct of the proceedings. I responded by confirming that the application remained on my calendar for hearing on 4 March and that I would hear the matter then at 10h00 in court 13 unless there was a notice of withdrawal of the application or an application to postpone it.

[24] On the morning of 4 March 2021, literally two minutes before I was due to go into court to hear argument in the application for leave to appeal, I was informed that Mr Xulu intended to move an application for my recusal. This turn of events was completely at odds with the indication given more than two weeks earlier that such an application was not going to be made. The notice of application was signed in the name of Mr Xulu’s firm, BXI, not in that of his attorney of record, notwithstanding

that Mr Ndumiso of his attorneys of record’s local correspondents was present in court when the application was moved.

[25] Asked to explain why an application for my recusal was being sought at such short notice and in contradiction of the earlier intimation that there would not be such an application, Mr Xulu offered two reasons. Neither of them bore scrutiny. The first was that as he considered that I should have recused myself suo motu, the application was fact unnecessary; and that he had brought it out of an abundance of caution only to ensure that he was given a hearing. The second was that he had been prompted to bring the application at the eleventh hour because, so he claimed, I had decided at a late stage, and allegedly contrary to earlier indications, that the application for leave to appeal would be heard in open court, and not virtually, thereby occasioning him grave prejudice because his counsel were Johannesburg based.

[26] There was no substance in the first point because it was a recapitulation of the stance that Mr Xulu had previously taken before the earlier indication of an intention to apply for my recusal. It was therefore a basis for recusal that had been tacitly abandoned when it was decided not to proceed with such application. The second point was devoid of merit because any apprehension that I had agreed to hear the application remotely had no basis in fact. I had done no more than indicate, during early February, in response to an enquiry from the State Attorney, that I would be willing to consider a virtual hearing if the parties were able to satisfy me that they were able to make suitable practical arrangements for it. Subsequently, and because of the uncertainty caused by the shifting positions of Mr Xulu, in particular his failure to clarify his position with regard to the application for leave to appeal in the context of his indication that he intended to apply again for the rescission of the pertinent orders, I instructed my registrar, on 19 February, to inform the parties that, unless it were timeously withdrawn or postponed, I would hear the application for leave to appeal in open court on 4 March 2021, as originally provided in the abovementioned order

made by agreement on 1 February.

[27] I was therefore somewhat taken aback to receive an invitation on 1 March from the State Attorney, by email sent to my registrar at 13h32, to participate in a virtual hearing of the application for leave to appeal on 4 March. My registrar responded to this invitation, by email at 15h09 on 1 March, reminding the parties of the directions that I had given on 19 February that the hearing would be in open court. The State Attorney (Mr Leon Manuel) has confirmed on affidavit that he had overlooked those directions when he sent the invitation.

[28] It was the reiteration of my earlier directions that caused Mr Xulu to accuse me from the bar on 4 March of a last-minute denial of a virtual hearing. As evident from the sequence of events just described, the accusation was factually unfounded. In addition, as pointed out by the applicants’ counsel, Ms Bawa SC, with reference to an email sent to her by her counterpart, Mr Khoza SC, on Monday, 1 March 2021 at 08h50, Mr Xulu’s Johannesburg counsel gave notice that they no longer represented the first and fifth respondents. The notice was communicated several hours before my registrar’s abovementioned email of later that day. An email from the fifth respondent’s attorneys of record at 13h36 advised that counsel had withdrawn because the attorneys had not been placed in funds to cover counsel’s fees. It appears from the applicants’ opposing affidavit in the recusal application that the fifth respondent’s attorneys requested a postponement to a later date, when other counsel, who reportedly did not require cover, might be available. The applicants declined to agree to the requested postponement. It was for those reasons that Mr Xulu appeared without counsel on 4 March. His claims that he had been prejudiced by the reiteration of my direction that the application for leave to appeal would be heard in open court or that I had shifted the playing field at a late stage lacked factual foundation.

[29] As I had not had time to read the recusal application, and because I was committed to voluminous reading in preparation to preside the next day over the monthly admissions roll, I stood the recusal and leave to appeal applications down for hearing on the next day after I had finished hearing the admissions roll. The applicants’ counsel informed me that they too had received

the application only very shortly before it was brought to my notice.

[30] The applicants’ counsel indicated that they thought they could argue the recusal application without the need for opposing affidavits. They gave notice later in the day, however, that they had bethought themselves and that answering affidavits would be delivered during the morning of 5 March. Answering papers were duly delivered with sufficient time for Mr Xulu

to be able to produce a replying affidavit by the time the matters were called at noon. He complained, however, that he had been ‘ambushed’, and protested that the preparation of his reply had been rushed. I therefore offered him time to prepare a more considered reply and the applications were further postponed for hearing on 10 March 2021.

The stated grounds for the application for recusal

[31] The grounds for the recusal application were not clearly stated. The supporting affidavit was to a great extent argumentative, with extensive reference to the judgment of the late Appellate Division in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) – a matter that was quite distinguishable on its facts from the current case, as I shall discuss later in this judgment. There was also quite wide-ranging argument, supported with references to case law, concerning the continuing effectiveness, or lack thereof, of the rule nisi issued in the principal proceedings in the order made by Rogers J on 30 January 2020. The basis for that argument was that the rule nisi had lapsed because it had not been extended in terms of the directions given by Rogers J on the return day on 12 March 2020. Quite what that had to do with the application for my recusal went unexplained. In my judgment it was irrelevant.

[32] Two grounds for the recusal application could be made out. First, that I failed to disclose that I had been involved in ‘ex parte communications’ about his case with Mr Justice Rogers ‘and other judges’ and that I ‘supported Judge Rogers’ decision not to rule on a recusal application filed and pending before Rogers J and that [I] was collaborating with ten other judges to file a retaliatory misconduct complaint with the LPC [Legal Practice Council] against [him]’. Later in his supporting affidavit, Mr Xulu averred ‘Furthermore, Judge Binns-Ward is a complainant against me in a pending LPC complaint which is premature and frivolous on its face. That conduct has in turn actuated me to file a judicial misconduct complaint against Judge Binns-Ward and others’. Second, that ‘Judge Binns-Ward and other judges are party to a pending judicial conduct complaint against Judge Parker. That same complaint prompted a judicial misconduct complaint from a lay person and the JSC has expressly ruled that that the issues raised in the latter complaint are to be decided in the pending JSC complaint filed by Judge Binns-Ward and others.’

[33] The first of the aforementioned grounds implies that Mr Xulu is, or has reasonable grounds for apprehending that he is, the subject of some or other hostile conspiracy by Rogers J and a number of other judges in this Division of the High Court, including me. Apart from the fact that I am, together with nine other judges, including Rogers J, a co-complainant in respect of what we consider to have been Mr Xulu’s professional misconduct in respect of certain averments he made concerning us in an affidavit deposed to in support of an application for the recusal of Rogers J from hearing the principal proceedings, the fifth respondent provided no factual evidence in substantiation of his allegation that I, together with other judges, had been involved in ‘ex parte communications’ with Rogers J about his case.

[34] Mr Xulu notably avoided in his supporting affidavit disclosing any particulars about the nature of the complaint lodged with the Legal Practice Council in respect of his alleged misconduct. It was plainly necessary that he should do so, so that the applicants could assess whether there was any merit in his application. The closest Mr Xulu came to disclosing the basis for the complaint laid against him by myself and the other judges was in paragraphs 18-20 of the supporting affidavit, in which he made the following averments:

18. ... Judge Rogers failed to adjudicate the merits of the recusal application precisely because he considered it highly offending and an assailment of his personal integrity - he claims to have failed to deal with the recusal application because of its “tone”. His failure to decide the matter adversely affected my rights to a timely appeal of his conduct. Judge Rogers then invited other judges including Binns-Ward to interfere in the adjudication of the recusal application and collectively they filed a misconduct complaint against me. Judge Binns-Ward and the other judges, in an act of retaliation have sought to abuse their judicial authority to retaliate against me for a well-founded recusal application Rogers J failed and refused to adjudicate. Further, they seek to invoke the assistance of the LPC to prosecute me for alleged misconduct when Rogers J failed to properly decide the recusal matter before him.

19. Despite his manifest prejudiced views, Judge Binns-Ward continued to be involved in and preside over the underlying litigation and issue highly prejudicial orders with full knowledge that he considered my recusal application before Rogers J to have assailed his and other judges’ dignity and to be offensive. Having thus formed the said prejudiced view against me Judge Binns-Ward and the other judges then collectively filed a professional misconduct complaint against me with the LPC.

20. The thrust of their collective complaint is that my recusal application was highly offensive to them and that a non-judicial body, the LPC must adjudicate the merits of their complaint despite the fact that none of them as judicial officers ever issued a decision on the merits and demerits of my recusal application before Rogers J which remains unadjudicated to this day. This conduct is a clear breach of the constitutional duties of all judge (sic) to act without fear, favor or prejudice but is also an inexcusable dereliction of duty for retaliatory purposes motivated by spite and ill will.’

Mr Xulu essentially repeated those averments in paragraphs 10-14 of his replying affidavit.

[35] As to the pending complaint by a number of judges, including me, concerning Judge Parker, the fifth respondent not only failed to set out the nature of the pending complaint about Parker J, he also failed to demonstrate what bearing my involvement as a complainant in that matter could have on my ability to impartially adjudicate the anti-dissipation application of which I became seized in November 2020.

[36] Mr Xulu’s supporting affidavit furthermore did not offer any explanation why the application was being brought at the eleventh hour, after his legal representatives had indicated more than two weeks previously that the earlier decision to make an application for my recusal had been abandoned. Both of the grounds on which he now brings the application were known to him at the time when the aforementioned order of 1 February 2021 regulating the set down and exchange of papers in a contemplated recusal application was made, and accordingly, an explanation for the current application was surely called for in the context of his decision not to persist with the application contemplated in that order.

The applicants’ affidavit opposing the application for recusal

[37] The applicants contended in the opposing affidavit deposed to by their attorney of record, Mr Manuel of the Cape Town office of the State Attorney, that the belated recusal application was ‘nothing but another stratagem to delay the finalisation of the proceedings before [me] again, and ultimately to obstruct the finalisation of the proceedings before Justice Zilwa to hold Mr Xulu and the entities under his control jointly and severally liable for the public funds unlawfully removed from departmental bank accounts’. The affidavit stressed that the application had to be determined on the case as set out in the supporting affidavit, and not on the basis of statements made by Mr Xulu speaking from the bar.

[38] The baldness of the allegations in the supporting papers meant that the applicants were provided with very little in the way of factual evidence with which they could engage. Mr Manuel did, however, take the opportunity to sketch the history of the recusal application before Rogers J that featured prominently, albeit somewhat cryptically, in Mr Xulu’s supporting affidavit. He supported his description with reference (i) to the content of a practice note that had been provided to the Judge President in compliance with a direction by the latter on 27 May 2020 addressed by email with the subject line ‘THE DEPARTMENT OF AGRICULTURE, FORESTRY AND FISHERIES // B XULU & PARTNERS INC – 6189/19’[6] to Mr Xulu personally and to all legal representatives of the parties involved in case no. 6189/19 in the following terms:

‘The Judge President has directed that all these matters will be heard in the last week of term (22-26 June 2020) by a Judge appointed by the Minister from another Division of the High Court. [[7]]

Parties must ensure that the papers must be in order and the relevant Practice Note must be forwarded to the Judge President’s office at the latest by Friday 29 May 2020.’

and also (ii) to the judgment given by Rogers J on 10 September 2020, in which the recusal application was disposed of.[8] (I have inferred from the context that the phrase ‘all these matters’ referred to the matters identified in a memorandum to the Judge President by Judge Rogers after he (Rogers J) had given directions for the further conduct of case no. 6189/19 on or about 12 March 2020.)

[39] The practice note provided by the applicants in response to the Judge President’s aforementioned directive indicated that there were a number of interlocutory proceedings in the matter that required to be determined. The application for the recusal of Rogers J was dealt with in the practice note[9] as the fourth of such applications. The practice note recorded the following in this regard:

‘6.1 The First and Fifth Respondents brought an application seeking (1) the recusal of Judge Rogers in relation to WCHC case no. 6189/19; (2) declaring that Rogers J has both a conflict of interest and bias (or there exists a reasonable apprehension thereof) and as such cannot preside over any matters which relate to the parties under WCHC case no. 6189/19 and (3) ordering that a judge from an external provincial jurisdiction preside over WCHC case no. 6189/19. This application has been opposed. The amended Notice of Motion in relation hereto was filed on 19 May 2020 and the answering affidavit shall also be filed before 5 June 2020. The notice of motion founding papers in the recusal application is in File 7, item 53, record pp. 3047 -3468. The answering papers will be filed as item 57.

6.2 The First and Fifth Respondents regard the application for recusal to be moot in the light of this hearing before a judge from another division. The recusal application will in their view only become relevant if it is necessary for them to apply for leave to appeal.

6.3 The Applicants do not regard it as moot given that there is a conditional application for leave to appeal and the declaratory relief sought that has neither been determined, nor withdrawn, and Rogers J remains seized with the application for leave to appeal.’

[40] The judgment delivered by Rogers J on 10 September 2020 describes that the opposing papers filed by Mr Xulu on the aforementioned return day of 12 March 2020 in the principal proceedings foreshadowed an application for the learned judge’s recusal. It is convenient to quote extensively from the relevant passage of the judgment because it provides a compact summary of the essence of the background history of the recusal application sketched in Mr Manuel’s affidavit. Rogers J described the history as follows in para 3-17 of the judgment:

‘[3] ... Mr Xulu’s affidavit in opposition to the rule nisi foreshadowed an application for my recusal. ... .

[4] As a result of these developments, I made an order by agreement regulating the further conduct of the application for leave to appeal, the intervention [an application for leave to intervene in the principal proceedings had been lodged by a former deputy

director-general in the Department of Agriculture, Forestry and Fisheries] the foreshadowed recusal application and the rule nisi. At that stage there was, I believe, a general understanding that, subject to the outcome of the recusal application, I would deal with all the outstanding matters.

[5] Thereafter former Minister Zokwana delivered an application for the rescission of my judgment. BXI [B Xulu & Partners Inc.] and Mr Xulu did likewise. ... BXI and Mr Xulu also delivered a lengthy application for my recusal.

[6] Mr Xulu’s affidavit in opposition to the rule nisi, and his affidavit in support of the recusal application, contained a strident attack on my competence, impartiality and integrity. In the circumstances, I took the view that I should not deal with the outstanding matters unless I was technically seized with them or unless they were formally allocated to me for hearing by the Judge President. After obtaining the parties’ views, I reached the conclusion that the only outstanding matter with which I was technically seized was the application for leave to appeal. While considerations of convenience might have suggested that I should hear the other outstanding matters, there was no legal impediment to another judge dealing with them.

[7] I notified the Judge President accordingly. He decided that the outstanding matters (other than the application for leave to appeal) should be decided by a judge from outside this division. Smith J, from the Eastern Cape Division, was in due course seconded. I was told, at the hearing of the present application, that by agreement the rule nisi against Mr Xulu stood over for later determination, on the basis that Smith J would first determine the intervention and rescission applications.

[8] Although BXI and Mr Xulu, pursuant to my order of 12 March 2020, delivered an application for leave to appeal, their application was made conditional on the failure of the intervention and rescission applications. On this basis, and for the time being, the application for leave to appeal was held in abeyance. Smith J delivered judgment on 1 September 2020. He dismissed the intervention and rescission applications with costs, including the costs of three counsel.

[9] After the matter was argued before Smith J but before he delivered judgment, the applicants in the main case requested that the present application for leave to appeal be heard in early September, Smith J having intimated that he would endeavour to deliver judgment by the end of August. The applicants anticipated that the losing party or parties in the proceedings before Smith J might seek leave to appeal his judgment. They considered that if leave to appeal were granted by both judges, it would be convenient in due course for the same appellate panel to consider both appeals, bearing in mind the overlapping issues and that about the first 2700 pages of the record before Smith J comprised the papers that were before me when I gave judgment on 30 January 2020. There would be an undue delay in bringing matters to finality if the conditional application for leave to appeal in the present case were only argued once all appellate processes in the matters before Smith J were exhausted.

[10] In respect of the present application for leave to appeal, BXI and Mr Xulu’s attorneys are Millar & Reardon Attorneys of Durban (‘MRA’), with Mr Bridgman as counsel. As to the recusal application, my understanding was that it had been rendered moot by the allocation of the outstanding matters to another judge. However, and since there seemed to be some uncertainty on that score, I sought clarity from BXI and Mr Xulu’s legal representatives. On 3 August 2020 MRA notified my registrar in writing that their clients did not seek my recusal in the application for leave to appeal. On 21 August 2020 Mr Bridgman submitted heads of argument in support of his clients’ application for leave.

[11] It was thus much to my surprise that, just a few minutes before we entered court on 3 September 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’. He stated that he had prepared a supplementary affidavit in the recusal application, which he would hand up. He sought leave to address me in court before the commencement of the application for leave to appeal.

[12] When the matter was called, I placed on record that my registrar had received this letter. I asked Mr Bridgman whether he was instructed to argue the recusal application. He said no. I asked him whether Mr Xulu had a right of appearance in the High Court. He took instructions and answered in the negative. I asked him to take instructions on whether, in connection with my recusal, Mr Xulu was relying on any new or recent facts, ie matters not ventilated in his earlier affidavits. He took instructions, and was given the supplementary affidavit which Mr Xulu had prepared. Since Mr Bridgman had not read it, I invited him to hand it to me instead. A cursory perusal satisfied me that the supplementary affidavit contained nothing new.

[13] I then addressed Mr Xulu. I told him that my judgment of 30 January 2020 had granted no substantive relief against him. I had merely ordered that he be joined. The rule nisi still had to be determined. I was thus of the view that there was no appealable order against him in his personal capacity. In relation to BXI, he was not a legal practitioner with a right of appearance in the High Court. In terms of binding authority, such a person could not, save in exceptional circumstances, speak for a company in the High Court. (See Manong & Associates (Pty) Ltd v Minister of Public Works & another 2010(2) SA 167 (SCA) paras 3-16.)

[14] Mr Xulu did not seek to persuade me that in his personal capacity I had granted any final and appealable relief against him. He wished to address me on the substantive aspect of recusal. In relation to the application for leave to appeal, this was relevant only to BXI, not to him personally.

[15] Mr Xulu said that he could not afford to engage counsel to deal with the recusal application. I pointed out that Mr Bridgman was already on brief to appear before me that very day and that he could have been briefed to deal with the recusal application. Mr Xulu’s answer suggested that Mr Bridgman and other members of the Cape Bar were or might be unwilling to argue the recusal application because they had to appear before me from time to time. I told Mr Xulu that Mr Bridgman was an experienced counsel who would not shrink from arguing a recusal application if it could properly be done. Mr Bridgman would know that no judge would harbour ill-feeling towards an advocate discharging his or her duty. I asked Mr Bridgman whether I was mistaken. He confirmed that I was not.

[16] I ruled that I would not hear Mr Xulu further in support of the recusal application. My reasons were briefly this. BXI and Mr Xulu’s attorneys had unequivocally stated on 3 August 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. Counsel on both sides had come to court ready to argue the application for leave to appeal. Because of MRA’s letter of 3 August 2020, I had not concerned myself with the recusal papers, which included opposing and replying affidavits which I had not read (the opposing papers were not even in the court file). If BXI and Mr Xulu were allowed to resurrect the recusal application, it would thus have entailed a postponement.

[17] In addition, there was no motivated application for a departure from the general rule that a representative without the right of appearance in the High Court may not appear on behalf of a company (cf Manong para 14). In my view, the observance of the general rule is of particular importance in matters of recusal, since there is a distinct danger that persons untrained in the professional and ethical standards of High Court litigation could misuse the occasion to vilify judges. In that regard, and with reference to Mr Xulu’s lengthy affidavit in support of the earlier recusal application, I wish to say no more than that I would be surprised if any member of the bar would deign to associate himself or herself with many of the allegations contained therein or with the disrespectful language in which they are couched. The same is true of Mr Xulu’s affidavit opposing the rule nisi to the extent that such affidavit foreshadowed recusal. (I must add that there is no indication that Mr Bridgman or Ms Smart was involved in settling the offending material.)’

[41] Mr Manuel highlighted the similarity between the history of Mr Xulu’s conduct in respect of the recusal application before Rogers J and that in the equivalent proceedings before me: first, giving notice through his legal representatives that it was not being persisted with; then, at the eleventh hour, minutes before the court was due to sit to hear his application for leave to appeal, purporting to resuscitate the recusal application. The applicants characterised the conduct as being directed at obfuscation and delay; stratagems to put off the day of final reckoning in the principal proceedings.

[42] The opposing affidavit treated of the allegations made by Mr Xulu concerning the complaint lodged with the Judicial Service Commission against me and nine other judges as follows:

‘35. As for the complaint itself I have not had sight of the complaint lodged to (sic) the Judicial Service Commission and as it is not attached to the founding papers, its contents do not form part of the application for recusal. As far as I am aware my clients also do not have a copy hereof.

36. In light of the aforegoing I am driven to conclude that in the absence of a meritorious application for recusal, or perhaps counsel’s refusal to be party to a vexatious application, a complaint was lodged to the Judicial Service Commission contrived to create the appearance of a conflict of interest for purposes of deliberately seeking a postponement or derailment of the application for leave to appeal set down on 4 March 2021 - had there been a genuine conflict of interest in existence on 14 February 2021, the application for recusal would have been persisted with.

....

73. I point out that the approach of filing a judicial complaint against a judge in a matter that is pending cannot and should not be a basis for recusal in and of itself. To adopt such an approach would open up the floodgates that any litigant who wishes to prevent a matter from being finalized before a judge would simply need to lodge such a complaint.’

The deponent furthermore averred that if there had been ‘any bona fide grounds’ in existence for my recusal on 25 or 27 November 2020, it had behoved Mr Xulu to bring an application at that stage. Mr Manuel averred ‘The fact that the recusal application is now being brought when the matter is set down for the second time, and in contravention of a court order that afforded BXI/Mr Xulu the opportunity to file papers in this matter shows the mala fide nature of this application’.

[43] Mr Manuel labelled Mr Xulu’s conduct ‘Stalingrad tactics’. In amplification, he averred:

‘There has been a pattern of similar strategies employed to drag out these matters. This is the third attempt to ensure the presiding judge does not hear a matter. Rogers J was removed by the reallocation to Smith J, and Smith J withdrew after correspondence was addressed to the Judges President of the Western Cape and Eastern Cape High Courts by Mr Xulu questioning his mandate, despite him [i.e. Smith J] having confirmed same with his Judge President, who in turn confirmed with the Western Cape Judge President.

I place on record that to date we have been forced to deal with vexatious applications for recusal; Complaints to the Bar Council as well as the LPC (levelled against myself and my senior counsel); letters to Judge-Presidents, with the consequential effect that the presiding judge withdrew (Smith J) and [?was] removed (Rogers J) and now a belated complaint to the Judicial Service Commission and unmeritorious interlocutory applications.’

[44] Treating of the opaque allegations in the supporting affidavit about the complaint of unprofessional conduct laid by a number of judges, including myself, against Mr Xulu, the deponent to the applicant’s opposing affidavit set out an itemised history of the applicants’ attempts to obtain disclosure of the complaint. He pointed out that it was only Mr Xulu who had prevented the second applicant from obtaining a copy of the complaint.

[45] A copy of the complaint was requested by the applicants’ counsel from Adv Khoza SC when he was in Cape Town on 1 February 2021. Mr Khoza reportedly appeared to have no difficulty with a copy of the complaint being provided but did not have a copy to hand at the time. A written request for a copy of the complaint was thereafter directed to the respondents’ attorneys on 8 February. Mr Ndumiso of the respondents’ Cape Town correspondent attorneys thereupon addressed a request to Judge Rogers for permission to release a copy of the complaint to the applicants’ legal representatives. A response from Rogers J in the following terms was emailed to Mr Xulu’s attorneys and to Mr Manuel on 10 February 2021:

Dear Messrs Ndumiso and Manuel

I and the other complainant-judges have no objection to the complaint being made available to the DAFF’s legal team, provided Mr Xulu likewise consents. We consider, however, that this should not be done without the approval of the LPC. You may furnish this email to the LPC in support of a request for approval.

We do not know whether Mr Xulu has as yet filed a response to the complaint. If he has, the LPC has not yet furnished it to us.

Yours faithfully

Judge OL Rogers

(I should perhaps record at this point that, as implied in the communication from Judge Rogers, I was made aware of the request

from Ndumiso Attorneys, and was party, along with all the other complainant-judges, to the consent to the disclosure of the complaint

conveyed in Judge Rogers’ reply.)

[46] The opposing affidavit related that on 10 February 2021 Mr Ndumiso copied the deponent in on an email to the Legal Practice Council in which Mr Ndumiso informed the Council that Mr Xulu refused to consent to a copy of the complaint being released on the basis that ‘the matter is before the Legal Practise Council (sic) and should be dealt with by the LPC until they make their own findings thereto’. Mr Ndumiso was said to have further indicated that Mr Xulu had instructed him that ‘[t]he

consent from the judges is sufficient for the DAFF team to be aware that there is a complaint by judges against him’.

[47] Mr Manuel explained that the applicants did not thereafter pursue their request to be given a copy of the complaint any further given the aforementioned indication on 11 February that the contemplated application for my recusal was not going to be instituted. He stressed, however, ‘that the complaint is not before this Court and the recusal is not being sought based on the contents thereof’. He averred, in response to averments in Mr Xulu’s supporting affidavit that might be construed as obliquely suggesting that the complaint was related to allegedly ‘“abusive” or “intemperate”, vituperative or insulting language’ in his application for the recusal of Rogers J, that ‘[t]o the extent that Mr Xulu is referring to the contents of his affidavit in the recusal application the contents thereof speak for itself (sic)’.

[48] Mr Manuel pointed out that the judges’ complaint to the Legal Practice Council about Mr Xulu’s alleged professional misconduct had been laid on 17 December 2020, and that accordingly no complaint had been pending when the return day proceedings in the anti-dissipation application had been heard in November. He also pointed out that Mr Xulu’s averment that the anti-dissipation order was before a judge appointed from outside the Western Cape when it came up before me was incorrect.

Judge Smith had withdrawn from hearing any matters related to case no. 6189/19 before 25 November and Judge Zilwa was only

appointed on 8 December 2020 as an ad hoc judge in the Western Cape Division to hear ‘an application’. As Mr Manuel correctly indicated, Judge Zilwa’s appointment could not have the effect of making him the appropriate judge to hear the application for leave to appeal against the orders I had made on 25 and 27 November 2020. [10]

[49] The second applicant asked for the recusal application to be dismissed with costs on a punitive scale, including the fees of two counsel and the wasted costs in respect of the sittings on 1 February and 4 and 5 March 2021.

Mr Xulu’s replying affidavit in the application for recusal

[50] As all too often the case with replying affidavits, Mr Xulu’s replying affidavit was mainly argumentative. Its other failing was that it impermissibly introduced new factual allegations.

[51] He alleged that I ‘knew from the court file that [his] liability (joint and several with BXI) had not been determined and that the rule nisi [issued by Rogers J on 30 January 2020] described above had lapsed on 12 March 2020’. He also alleged that I ‘knew the exact terms of Smith J’s acting appointment for strictly four days in June 2020 as stated above’. The clear implication in these averments was that I had knowingly proceeded to confirm the anti-dissipation order with full knowledge that there was no legal basis to take that course.

[52] With reference to my ex-tempore remarks at the time I made the order on 27 November 2020, Mr Xulu proceeded ‘Judge Binns-Ward evinced his unbridled bias and bigotry when he went further and claimed that “it was drawn to [his] attention that the fifth respondent is apparently in contempt of the orders made by Smith J ... and in that context ... in such circumstances the Court should not lend an ear to litigants in contempt of court orders until they have purged their contempt. The said judge was willing to condemn me and find me in contempt of court on the basis of ex parte representations and without regard to the law on contempt’.

[53] Mr Xulu also introduced an allegation that I should have recused myself suo motu because I had ‘a conflict of interest’. Whereas the affidavit gave the impression that the alleged conflict arose because I had lodged a complaint against him with the Legal Practice Council and he had lodged one against me with the Judicial Service Commission, it emerged in his address in support of the application that his accusation was actually advanced on the predicate that I was party to a ‘suit’ against his client, the Judge President, by virtue of my being a co-complainant in a matter

concerning another judge in the Division, Judge Parker.

My own statement of the facts

[54] It has frequently been observed that it can be a sensitive and difficult undertaking for a litigant to move for a judge to recuse himself.[11] As I remarked to Mr Xulu when he referred to this during his address, a recusal application is also often a difficult and sensitive matter for the affected judge. This is because, as the jurisprudence illustrates, it is often necessary for the judge to deal with the application on the basis of his or her own knowledge of disputed facts and on that basis to reject some or all of the allegations on which the application was founded because the judge knows that they are not true. In the nature of things some of such facts might, within the context of the litigation, be within the exclusive knowledge of the judge concerned. For that reason, in recusal applications the judge has sometimes to become a witness in the case. That is philosophically antithetical to the judicial function, and therefore something understandably uncomfortable for any judge to have to do. It can become necessary, however, because a judge cannot be expected to adjudicate the application accepting what the judge knows are incorrect factual allegations. Two matters that illustrate the proposition that come readily to mind are President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9, 1999 (4) SA 147 (CC), 1999 (7) BCLR 725 (CC) (‘the SARFU judgment’) and Mulaudzi v Old Mutual Life Insurance Company (South Africa) Limited and Others, National Director of Public Prosecutions and Another v Mulaudzi [2017] ZASCA 88 (6 June 2017); [2017] 3 All SA 520 (SCA); 2017 (6) SA 90 (SCA) (to which Mr Xulu referred in argument).

[55] In SARFU it was necessary for the judges of the Constitutional Court to place on record various facts that rebutted the allegations by the

respondent in that case that sought their recusal on the grounds of apprehended bias because of the judges’ alleged close

relationship with one of the parties and various other matters such as the judges’ alleged political connections and the alleged animosity of one of them towards the respondent’s attorney. In Mulaudzi, the presiding judge at first instance in one of the matters in the appeal in which bias or conflict of interest was raised, was invited, for the purposes of the preparation of the appeal record, ‘to make a statement of the facts you consider necessary for the proper adjudication of the reasonable apprehension of bias grounds of appeal raised by the NDPP and [Old Mutual], i.e. a statement like the one by the Justices of the Constitutional Court which is quoted in President of the Republic of South Africa and Others v South African Rugby Football Union and Others ...’.[12]

[56] In the current matter I find it necessary to place the following facts on record:

1. Save only that, in or about April or May 2020, Judge Rogers drew to my attention, and to that of the other affected judges, that Mr Xulu had, gratuitously and without any relevant basis in the case for doing so, made a number of intemperate and insulting remarks about us in an affidavit in support of an application for Judge Rogers’ recusal, I had no involvement in, or exposure to, any aspect of the litigation in case no. 6819/19 prior to the anti-dissipation order return date coming up before me on 25 November 2020.

2. The remarks to which Judge Rogers quite appropriately drew the affected judges’ attention were contained in what appeared to be a very lengthy affidavit by Mr Xulu. I did not read the entire affidavit and had regard only to the passages thereof that Judge Rogers alerted us contained the offensive material.

3. The remarks made by Mr Xulu concerning myself and the other complainant-judges to which Judge Rogers drew attention appeared to

relate entirely to Mr Xulu’s perception of our role as complainants in a complaint lodged with the Judicial Service Commission against Judge Parker. The subject matter of that complaint is entirely unrelated to the litigation in case no. 6189/19. To the best of my knowledge, Judge Parker (who has since been suspended from office by the President pending the investigation of the complaint by a Judicial Conduct Tribunal) has had no involvement in any aspect of the litigation in case no. 6189/19. I also have no knowledge of any personal or other connection between Judge Parker and Mr Xulu, and no reason to understand that there might be. None has been suggested by Mr Xulu.

4. I have at no time been party to any discussions with Judge Rogers or any other judge about the merits of any aspect of the litigation in case no 6819/19, including the application for Judge Rogers’ recusal. I had no reason to be interested in the case.

Furthermore, no judge seized of any aspect of the litigation has sought to discuss the case with me, notwithstanding that I consider

that it would have been within their right to do so with any colleague in the Division should they have chosen to do so.

5. I cannot recall ever having met Judge Smith, and I am, to this day, not privy to the terms of his appointment as an acting judge of the Western Cape Division for the purpose of hearing case no. 6819/19 or any part thereof. As mentioned, I was made aware by the correspondence attached to the applicants’ counsel’s practice note that there was unresolved contentiousness concerning the ambit of Judge Smith’s appointment. However, I was not required in the proceedings before me to investigate or make any determination on that matter. The orders made by Smith J that I was asked to confirm on the return date were orders issued out of the Western Cape Division of the High Court, and I was informed by the second applicant’s practice note that applications by Mr Xulu and other respondent parties to have them rescinded or set aside had been refused. The returns by the sheriffs who served the rule nisi in the anti-dissipation application and who executed or attempted to execute the orders made by Smith J were rendered to the Western Cape Division and the proceedings on the return day were enrolled in the Third Division in the ordinary course by the registrar of the Western Cape High Court.

6. I had no knowledge of the terms of the order made by Rogers J on 12 March 2020 when the anti-dissipation application came before me and it was at no stage, before the application for leave to appeal lodged on 22 December 2020, suggested that that order might be of any relevance. It was only in his belated application for my recusal that Mr Xulu directed my attention to where in the voluminous papers, the order might be found, but I have not had reference to it because it was not in the papers put before me for the purposes of the anti-dissipation application. I note from the judgment given by Rogers J on 10 September 2020, from which I have quoted extensively above, that the learned judge recorded (in para 4) that the order that he made by agreement then did regulate the further conduct of the proceedings in relation to a number of matters including the rule nisi. As it was, the import of the order that Rogers J made on 12 March was not a matter that I was called upon to consider in the anti-dissipation application, and it is therefore also not a matter that I intend to concern myself with now.

7. I cannot recollect seeing the memorandum by Rogers J referred to in the application for leave to appeal, and cannot imagine why I should have had cause to see it. I assume from what has been said about it that the memorandum in question is the communication to the Judge President to which Rogers J referred in para 6-7 of his abovementioned judgment of 10 September 2020. Whilst I can claim no personal knowledge of the content thereof, the learned judge’s description of the communication in the judgment does not accord with the assertion in the application for leave to appeal that the judge ‘expressed his disqualification to preside over matters involving Xulu’.[13] It also seems impossible that Rogers J could have indicated in any such memorandum, which must have been written before the end of May 2020, that he considered himself disqualified from hearing any matters involving Xulu on account of the complaint to the Legal Practice Council about Xulu’s professional misconduct, for the decision to make such a complaint was only taken by the complainant judges during mid-December 2020. (I doubt very much that Rogers J would have regarded the complaint to which he was party against Judge Parker, which had been lodged during March 2020 as having any bearing on his ability to hear cases to which Mr Xulu was party. I have already recorded that Mr Xulu had no cognisable connection with or involvement in the Parker complaint.)

8. The complaint in respect of Mr Xulu’s professional misconduct was lodged on 17 December 2020. The prospect that a complaint would be lodged did not exercise my mind when I dealt with the return day proceedings of the anti-dissipation order. Although the possibility of lodging a complaint had been discussed between colleagues when Judge Rogers drew the aforementioned averments made by Mr Xulu about the complainant-judges much earlier in the year, the decision to proceed with it and to draft the required documents was made only two or three days before the complaint was lodged. I was not the initiator of the decision to lodge the complaint, although I fully supported the proposal that the affected judges should do so. The complaint was lodged by the complainant judges in their official capacities. Had the possibility of a complaint being lodged against Mr Xulu exercised my mind in November, I doubt that I would have considered it in any way relevant to the adjudication of the anti-dissipation application. Mr Xulu was in any event aware of all the facts pertinent to the subject matter of the complaint. He also could not have been under any misapprehension that the conduct that gave rise to the complaint would not have been regarded as unprofessional conduct, not only by all the judges affected by it but also by any other informed person considering it objectively.

Determination of the recusal application

[57] The principles applicable in the post-Constitutional era in the adjudication of an application for a judge’s recusal are now well established. Seminally rehearsed in the SARFU judgment supra, they have been reiterated in a number of subsequent decisions of the Constitutional Court - see in this regard

principally South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) [2000] ZACC 10; 2000 (3) SA 705 (CC) (‘the SACCAWU judgment’) at para 11-17, S v Basson 2007 (3) SA 582 (CC) in para 23-36, Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC) in para 28-37 and De Lacy and Another v South African Post Office [2011] ZACC 17 (24 May 2011); 2011 (9) BCLR 905 (CC) at para 68-70.

[58] The test has been labelled as one of ‘double reasonableness’. The import and effect of the test was eloquently and succinctly summarised by Cameron AJ in the SACCAWU judgment supra. The summary bears setting out in full:

The test for recusal

[11] In Sarfu, this Court formulated the proper approach to recusal as follows:

'The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.'

[12] Some salient aspects of the judgment merit re-emphasis in the present context. In formulating the test in the terms quoted above, the Court observed that two considerations are built into the test itself. The first is that in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating

disputes. As later emerges from the Sarfu judgment, this in-built aspect entails two further consequences. On the one hand, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. On the other, the presumption is not easily dislodged. It requires 'cogent' or 'convincing' evidence to be rebutted.

[13] The second in-built aspect of the test is that 'absolute neutrality' is something of a chimera in the judicial context. This is because Judges are human. They are unavoidably the product of their own life experiences and the perspective thus derived inevitably and distinctively informs each Judge's performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality - a distinction the Sarfu decision itself vividly illustrates. Impartiality is that quality of open-minded readiness to persuasion - without unfitting adherence to either party or to the Judge's own predilections, preconceptions and personal views - that is the keystone of a civilised system of adjudication. Impartiality requires, in short, 'a mind open to persuasion by the evidence and the submissions of counsel'; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding. The reason is that:

'A cornerstone of any fair and just legal system is the impartial adjudication of disputes which come before courts and other tribunals. . . . Nothing is more likely to impair confidence in such proceedings, whether on the part of litigants or the general public, than actual bias or the appearance of bias in the official or officials who have the power to adjudicate on disputes.'

[14] The Court in Sarfu further alluded to the apparently double requirement of reasonableness that the application of the test imports. Not only must the person apprehending bias be a reasonable person, but the apprehension itself must in the circumstances be reasonable.

This two-fold aspect finds reflection also in S v Roberts [1999 (4) SA 915 (SCA); 1999 (2) SACR 243, at para 32, per Howie JA], decided shortly after Sarfu, where the Supreme Court of Appeal required both that the apprehension be that of the reasonable person in the position of the litigant and that it be based on reasonable grounds.

[15] It is no doubt possible to compact the 'double' aspect of reasonableness inasmuch as the reasonable person should not be supposed to entertain unreasonable or ill-informed apprehensions. But the two-fold emphasis does serve to underscore the weight of the burden resting on a person alleging judicial bias or its appearance. As Cory J stated in a related context on behalf of the Supreme Court of Canada:

'Regardless of the precise words used to describe the test, the object of the different formulations is to emphasise that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity.'

[16] The 'double' unreasonableness requirement also highlights the fact that mere apprehensiveness on the part of a litigant that a Judge will be biased - even a strongly and honestly felt anxiety - is not enough. The court must carefully scrutinise the apprehension to determine whether it is to be regarded as reasonable. In adjudging this, the court superimposes a normative assessment on the litigant's anxieties. It attributes to the litigant's apprehension a legal value and thereby decides whether it is such that it should be countenanced in law.

[17] The legal standard of reasonableness is that expected of a person in the circumstances of the individual whose conduct is being judged. The importance to recusal matters of this normative aspect cannot be over-emphasised. In South Africa, adjudging the objective legal value to be attached to a litigant's apprehensions about bias involves especially fraught considerations. This is because the administration of justice, emerging as it has from 'the evils and immorality of the old order' remains vulnerable to attacks on its legitimacy and integrity. Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give consideration to two contending factors. On the one hand, it is vital to the integrity of our courts and the independence of Judges and magistrates that ill-founded and misdirected challenges to the composition of a Bench be discouraged. On the other, the courts' very vulnerability serves to underscore the pre-eminent value to be placed on public confidence in impartial adjudication. In striking the correct balance, it is 'as wrong to yield to a tenuous or frivolous objection' as it is 'to ignore an objection of substance'.

(Footnotes omitted.)

Ngcobo CJ noted in Bernert supra[14] that ‘Judicial officers have a duty to sit in all cases in which they are not disqualified from sitting. This flows from their duty to exercise their judicial functions. As has been rightly observed, “(j)udges do not choose their cases and litigants do not choose their judges”. An application for recusal should not prevail unless it is based on substantial grounds for contending a reasonable apprehension of bias.’

[59] As the question of real or reasonably apprehended bias was raised in this case only after I had made the order confirming the provisional anti-dissipation orders made by Smith J, I think it is relevant in the determination of the recusal application, which in its essence entails a legal determination predicated on the relevant underlying facts, to have regard to the manner in which the proceedings before me were conducted both before and after the question of recusal was raised; cf S v Basson supra. It is also relevant because in his supporting affidavit, Mr Xulu, who was not present at the hearings in November 2020 or the abortive hearing on 1 February 2021, has alleged that I was angry and insulted and ‘evinced unbridled bias and bigotry’. Unless those averments were the product of an imagination run riot, I could only assume that they must have been based on reports he had received from persons present at the hearing; although he did not say as much. I was surprised and rather taken aback by them because they were wholly inconsistent with my recollection of the content and atmosphere of the hearings. I therefore reviewed the transcripts of the hearings. They did not bear out Mr Xulu’s accusations at all.

[60] The transcripts bear out my observation above that I displayed no anxiety to hear the case and in fact suggested that it might be postponed to be dealt with by the then as yet to be appointed judge from outside the Division. Mr Xulu’s reaction when I raised this with him in argument confirmed that he had no knowledge of this and had not troubled to obtain and consider the transcripts before making the unsubstantiated and unfounded allegations in his application concerning my attitude and behaviour. As pointed out by the applicants’ counsel, the transcripts also show how, in a number of respects, I gave the applicants less than they asked for and was concerned to be fair to Mr Xulu’s position. The demonstrable inconsonance between his allegations

and reality serves in a material respect to highlight the unreasonableness of his position as the litigant purporting to assert

a reasonable apprehension of bias.

[61] The averments made by Mr Xulu about which my colleagues and I have complained to the LPC have nothing whatsoever to do with the litigation in case no. 6189/19 in which Mr Xulu is involved. They concerned our conduct in laying a complaint against Judge Mushtak Parker. The fact that Mr Xulu, for reasons best known to himself, chose to make those averments about us in an affidavit for Judge Rogers’ recusal from case no. 6189/19 despite the fact that they were entirely irrelevant to the latter case is entirely incidental. It could not reasonably be thought by him to disqualify us from hearing case no 6189/19 or any part thereof should it come up before us. Were it otherwise, a litigant could disqualify any members of the bench he did not wish to hear his case merely by visiting invective on them before the case could be allocated to any of them. On Mr Xulu’s approach, for example, Rogers J would have been bound to recuse himself merely because Xulu unreasonably and unjustifiably made gratuitously insulting remarks about the judge. That approach is wholly irreconcilable with the application of the ‘double unreasonableness requirement’ expounded in the Constitutional Court’s jurisprudence discussed above.

[62] A reasonable litigant in Mr Xulu’s position would appreciate that judiciary has a common law role of custos morum in respect of the legal profession.[15] He would understand that in the context of the prevailing statutory framework judges fulfil that role by directing any professional misconduct by practitioners that comes to their notice to the appropriate professional body for investigation and appropriate action. The Legal Practice Council is currently the regulatory body for the legal profession. It is entrusted with a duty to act in the interest of the profession, the court and the general public, cf. Jiba and Another v General Council of the Bar of South Africa and Another 2019 (1) SA 130 (SCA) in para 6. The conduct of a legal practitioner who makes unwarranted and intemperate statements about a judge in the course of litigation is deserving of investigation by his or her regulatory body, see e.g. De Lacy supra, at para 120. Judges drawing apparent professional misconduct to the attention of the Legal Practice Council is a public duty, not a personal matter.

[63] If the Legal Practice Council were to report back to the Court that its investigation established that the legal practitioner concerned had made him or herself guilty of professional misconduct that merited a sanction beyond the power of the Council to impose – striking off, for example – that would be done in the form of an application by the Council for an appropriate remedial order. Such proceedings have been characterised as sui generis; they do not involve the Council in claiming something from the delinquent practitioner; see Solomon.[16] Equally, absent some or other exceptional feature that might demonstrate personal animus, a report by a judge to a professional

body calling for the investigation of what appears to the judge to be professional misconduct on the part of the practitioner cannot

reasonably be seen as creating the sort of adversarial relationship between the judge and the practitioner that would disqualify the judge from sitting in any case in which the practitioner was involved, whether as litigant or practitioner. To hold otherwise would be to ignore the presumption of judicial impartiality, to render valueless the integrity of the judicial oath of office, and to contradict the oft and widely expressed recognition by the highest courts that appointed judges are generally well able to carry out their oath by reason of their training and experience. It would negate the principle that it should be assumed that judges can disabuse their minds of any irrelevant personal beliefs or predispositions when carrying out their judicial functions.

[64] The question then is, do the facts disclosed in the application or the manner in which the matter proceeded before me demonstrate that I did not bring a judicial mind to bear on the matter before me or that there was a reasonable basis to apprehend that I would not do so? For the reasons I have given with reference to governing principles, I do not consider that the mere fact that I have complained to the Legal Practice Council about Mr Xulu’s professional conduct justifies a positive answer to the question. Mr Xulu has steadfastly declined to disclose the complaint. He has not alleged any facts to establish that it was coloured in some or other way that might make out a basis for a reasonable apprehension that I could not bring a judicial mind to bear in the anti-dissipation application.

[65] Any notion Mr Xulu might have nurtured that an application for recusal was a private matter between him and me that could be disposed on the basis of vague and unsubstantiated allusions was sorely misdirected. The second applicant also had a legal interest in the application. He persisted with his non-disclosure notwithstanding my invitation to him during his address in support of the application to disclose the facts underpinning the baldly alleged ‘ex parte communications’ and ‘retaliatory’ conspiracy. It is clear to me that Mr Xulu has assiduously and persistently avoided disclosure of the detail of the complaint against him because he appreciates that it would expose how far-fetched and unreasonable is his attempt to imply that the complaint is in any way relevant to case no. 6189/19 in general, and the anti-dissipation application in particular. He has no evidence to support his allegations about ‘ex parte communications’.

[66] The complaint made in respect of Mr Xulu’s conduct in relation to an aspect of the litigation in case no 6189/19 had no connection to the interlocutory application that later came before me. A reasonable litigant in Mr Xulu’s position could not reasonably have apprehended that the complaint would have any bearing on the adjudication of the anti-dissipation application. The anti-dissipation application was based on facts wholly unrelated to the subject matter of the complaint.

[67] It will be recalled that Mr Xulu also seemed to contend that the fact that I was a co-complainant in a complaint to the Judicial Service Commission concerning Judge Parker in an entirely unrelated matter somehow disqualified me from hearing the anti-dissipation complaint. He failed to make out anything approaching a coherent basis for the application on this ground in his supporting affidavit. In his address in support of the application, he stated that the investigation of the complaint against Judge Parker held implications for the Judge President and that he was the Judge President’s attorney. None of this was spelled out in his affidavits. Even were I to assume in his favour that his statements in this regard from the bar were well-founded, they would not make a case for my recusal. It would not make me party to a ‘suit’ in which he had a cognisable interest, as he professed to believe. His reliance in this connection on the role that his position as Hlophe JP’s

attorney had played in the SCA’s determination of the Mulaudzi case was entirely misplaced, as I shall endeavour to demonstrate when I discuss that matter later in this judgment.

[68] Mr Xulu knew about the complaint about his conduct to the Legal Practice Council and about the complaint to the Judicial Service Commission concerning Judge Parker when he communicated the abandonment of his intention to proceed with the contemplated application on 11 February 2021. His abandonment of the intention to make the application bears testimony to the fact that Mr Xulu himself recognised that there was no merit in it. As I have pointed out earlier in this judgment, his explanations for his last-minute resuscitation of the endeavour do not bear scrutiny.[17]

[69] The circumstances of the current case also merit attention being directed to the additional principle stated in Bernert supra at para 69-76 that it is not in the interests of justice to permit a litigant with knowledge of all the relevant facts upon which recusal is sought to wait until an adverse judgment before raising the issue of recusal. In my view, the interests of justice also do not favour permitting a litigant, who with full knowledge of the facts intimates to the judge and the other parties that it is not going to ask for the judge’s recusal, to thereafter, at a later stage in a procedurally prejudicial manner, seek to make such an application.

[70] Finally on this matter, and only for completeness, I deal with Mr Xulu’s extensive reliance on the judgments in Moch and Mulaudzi.[18] The appeal court held in both those matters that the first instance judges should not have sat in the cases. Mr Xulu appeared to contend that on their facts the cases were analogous to the current matter.

[71] In the respect currently relevant, Moch concerned an application by a litigant for the recusal of an acting judge who had a history of ‘decidedly strained’ personal relations with the litigant’s attorney of record. The unrebutted evidence was that the acting judge had previously stated to another attorney that he ‘had it in’ for the litigant’s attorney and that he ‘was going to get’ him one day. This information unsettled the litigant and made her doubt that she would receive a fair hearing. The appeal court found it unnecessary to determine on the evidence that I have described whether the litigant’s apprehension was

reasonable or not. It held, however, that the acting judge’s conduct in relation to the application for his recusal was sufficient in itself to justify such an apprehension. The judge had refused to entertain an approach in chambers about the litigant’s concerns and when the application for recusal was moved his behaviour demonstrated that he had taken grave personal offence. The nature and tone of the judge’s frequent interruptions during counsel’s addresses indicated a strong predisposition against both the litigant and her attorney, such as to give rise to a reasonable apprehension that she would not receive a fair hearing. That was underscored by some adverse findings in the judgment refusing the application that were founded on unsupportable speculation by the judge.

[72] I have no historical relationship with Mr Xulu. Indeed, to the best of my knowledge, the first time that I laid eyes on him was when he appeared before me in this matter on 4 March 2021. As indicated earlier in this judgment, my review of the transcripts of the proceedings before me in this matter, both before and after Mr Xulu’s first appearance, has reassured me that the proceedings were conducted in an appropriately even-handed manner. Moch’s case is accordingly wholly distinguishable on the facts.

[73] The factual context in Mulaudzi also differed materially from the current matter. Mr Xulu is familiar with the detail as he happened to be Mr Mulaudzi’s

attorney in that case.

[74] The litigation in Mulaudzi involved some complex questions, but simply put the facts can be summarised as follows: Mulaudzi ceded his rights in a five-year fixed bond policy with Old Mutual to Nedbank. In disregard of the cession, and in fraud of Nedbank’s consequent right to payment upon the maturity of the policy, he subsequently prevailed upon Old Mutual to make payment to him. When the fraud was discovered and reported to the police by Old Mutual, the National Directorate of Public Prosecutions obtained a provisional restraint order against Mulaudzi’s property in terms of the Prevention of Organised Crime Act 121 of 1998. A rule nisi was issued calling upon Mulaudzi to show cause on 27 November 2014 why the provisional order should not be confirmed. Mulaudzi anticipated the return day on 17 September 2014 on 24 hours’ notice, as he was entitled to in terms of the rules of court. The anticipated return day proceedings would in the ordinary course have come up before one of the two duty judges allocated to hear urgent matters. Out of the ordinary course, however, Hlophe JP, who was not one of the duty judges, allocated the matter to himself for hearing on the following day, 18 September 2014. Mr Xulu, who as mentioned was Mulaudzi’s attorney, was also acting for Hlophe JP at the time in relation to a judicial misconduct complaint lodged against the Judge President by the judges of the Constitutional Court. Old Mutual applied on the adjourned anticipated return day for leave to intervene in the proceedings. Its interest was to oppose the discharge of the provisional restraint order. Hlophe JP refused the application for leave to intervene and discharged the provisional order without furnishing reasons. Written reasons for his decisions were furnished more than a month later, on 21 October 2014.

[75] In para 44 of the SCA’s judgment in Mulaudzi, Ponnan JA described the appellants’ grounds for complaint by quoting from Old Mutual’s application for leave to appeal[19] as follows:

'25. The applicant for intervention reasonably apprehends that the Judge President failed to bring an impartial mind to bear upon the adjudication of the matter for the following reasons:

25.1 As they were entitled to do, on 17 September 2014 the defendant and respondents brought an application to anticipate the return day of a rule nisi on 24 hours' notice to the NDPP.

25.2 Although the judges assigned to hear urgent applications on 18 September 2014 were His Lordship Mr Justice Saldanha and His Lordship Mr Acting Justice Bremridge, on 17 September 2014 the Judge President decided that he himself should hear the application on 18 September 2014.

25.3 The attorney of record for the defendant and the respondents, Mr Barnabus Xulu, is the Judge President's personal attorney in matters relating to a complaint of misconduct made against him by judges of the Constitutional Court.

25.4 On the morning of 18 September 2014 the parties' legal representatives met with the Judge President in his chambers. During that meeting the Judge President was advised of the applicant for intervention's intention to bring, that morning, its application for leave to intervene in the restraint proceedings and of the NDPP's intention to file, that morning, his replying papers in response to the defendant's application to anticipate the return day of the rule nisi.

25.5 The NDPP's replying papers, which comprised 97 pages and contained evidence which undermined the defendant's defence that there were no reasonable grounds to believe that he might be convicted, including an affidavit from a Nedbank official (Frans Lukas Jooste) showing Nedbank had remained the cessionary of the policy, were handed to the Judge President during the meeting in chambers.

25.6 The Judge President arrived in court shortly after the conclusion of the meeting in his chambers.

25.7 When the matter was called, the papers in the application for leave to intervene were handed to the Judge President from the Bar.

25.8 The Judge President immediately heard argument on the application for intervention and, having done so, immediately dismissed the application for intervention with costs without furnishing reasons.

25.9 The Judge President then immediately heard argument on the anticipated return day of the rule nisi and, having done so, immediately discharged the rule nisi with costs without furnishing reasons.

25.10 The Judge President could have, but did not, reserve judgment on the application for leave to intervene and on the anticipated return day of the rule nisi, in order to read the application papers of the applicant for intervention and the replying papers of the NDPP including the affidavit from Nedbank.

25.11 The written reasons for his decision which the Judge President gave on 21 October 2014 are based on the defendant's version and do not address the evidence put up by the NDPP and the applicant for intervention, especially the refutation in the NDPP's replying papers of the defences put up by the defendant in his answering papers.

25.12 The applicant for intervention consequently reasonably apprehends that the Judge President was influenced by his relationship with Mr Xulu to hear the matter himself and to discharge the rule nisi forthwith.'

[76] The appeal court considered several features of Hlophe JP’s hearing of the case, including his relationship with Mr Xulu. It is clear that it was the cumulative effect of those features that led the court to conclude that the NDPP and Old Mutual had established that their apprehension that they had not received a fair and impartial hearing was reasonably held. Thus, at para 68 of the judgment, Ponnan JA concluded ‘It is so that some of the individual factors raised would not, in and of themselves, be a sufficient indication that the NDPP and Old Mutual did not have a fair hearing. Taken cumulatively though, I have no doubt that their complaint that they reasonably apprehended that the Judge President did not bring a fair and impartial mind to bear on the adjudication of the matter is justified.’ The findings that cumulatively led to that conclusion are adequately summarised in the headnote to the report of the judgment in the South African Law Reports with reference in parentheses to the corresponding paragraphs in the body of the judgment:

‘(i) Mulaudzi's attorney, Mr Xulu, was Hlophe [JP]'s longstanding attorney, and was currently representing Hlophe [JP] in disciplinary proceedings (see [49] – [50]);

(ii) Hlophe [JP] was not a duty judge on the return day, yet assigned himself the matter (see [60]);

(iii) Both the National Director and Old Mutual submitted papers to Hlophe [JP] on the return day (the National Director's opposing discharge; Old Mutual's in support of its intervention), yet without reading them, Hlophe [JP] discharged the restraint order, and dismissed the application (see [44] and [60]);

(iv) Hlophe [JP]'s later written reasons were only six pages long (see [61]);

(v) His findings in support of discharge were untenable (see [62] and [64] – [65]); and

(vi) He misapplied the relevant principles in denying leave to intervene (see [66] – [67]).’

[77] It is clear therefore that the facts in Mulaudzi differed toto caelo from the current matter. It would be a supererogation in an already very long judgment for me to explain the material differences. They are obvious and many.

[78] For all the foregoing reasons the application for my recusal will be refused.

Application for leave to appeal

[79] As mentioned earlier, it was agreed by the parties on 1 February that the application for leave to appeal would be argued at the same time as the application for leave to appeal. I have had regard to the heads of argument filed by the senior and junior counsel previously engaged by Mr Xulu and BXI to argue the application. Mr Xulu declined to advance any additional argument in support of the application for leave to appeal, saying that he thought it should be heard later. I was not willing to countenance this change of stance. I made it clear to him that I would give a judgment in the application for leave to appeal only should I conclude, as I have, that the application for recusal should be refused.

[80] It is not necessary for me to address the grounds of appeal predicated on the argument that I should have recused myself from the proceedings on the return date and extended return date of the orders made by Smith J on 12 and 15 October 2020. Those questions have already been addressed in my judgment on the application for my recusal from hearing the application for leave appeal. Suffice it to say that I am not persuaded that there is a reasonable prospect that another court might hold on appeal that I should have recused myself suo motu from hearing the return date proceedings in the anti-dissipation application.

[81] As to the allegation that I should have appreciated that the orders made by Smith J were invalid on account of his not being possessed of a relevant appointment in this Division, there is no merit in the point insofar as it might bear on the prospects on appeal. The terms of Smith J’s appointment were not part of the record in the anti-dissipation proceedings. As I have pointed out more than once before, if there was a defect in the learned judge’s appointment and he consequently lacked jurisdiction to make the orders, the appropriate manner of addressing any resultant invalidity is by way of an application for the rescission of the orders supported by the necessary evidence to sustain such a remedy; not by way of an appeal. 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 Mr Xulu considered it a matter that should have engaged my 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.

[82] The authority cited in the heads of argument of counsel for BXI and Mr Xulu in support of their contention that the court had been under an obligation to determine whether Smith J ‘had the requisite authority to make the orders it was called upon to confirm’, viz. Communications Workers Union and Another v Telkom SA Limited and Another 1999 (2) SA 586 (T) at 593G-594E and Carneiro v S [2016] ZAGPJHC 124 (29 April 2016) at para 9, does not support the proposition. The first mentioned case involved the question whether the subject matter of the litigation could be heard by the High Court or whether it fell within the exclusive jurisdiction of the Labour Court. In discussing how the question of jurisdiction could be raised, Southwood J pointed out that it was usually raised by way of special plea or exception. The learned judge noted that a court could also raise the question mero motu if the issue was identifiable from the pleadings. He did not say anything to suggest that, in the absence of a pleaded issue on the point, a judge was required to investigate the validity of another judge’s appointment before confirming a provisional

order made by such judge. In Carneiro loc cit, Moshidi J referred to Southwood J’s judgment in support of his having raised mero motu the High Court’s lack of jurisdiction to entertain an application for leave to appeal against a judgment given by it on appeal from the regional court. The learned judge was merely giving effect to the provisions of s 16(1)(b) of the Superior

Courts Act.

[83] I am not persuaded that an appeal against the anti-dissipation order enjoys a reasonable prospect of success and there is nothing about the anti-dissipation case that establishes any compelling reason for it to enjoy the attention of a higher court on appeal. Interlocutory orders are in any event not ordinarily appealable. An exception is made when the interests of justice demand it. I do not consider this to be such a case. In the circumstances the application for leave to appeal will be dismissed.

Orders

[84] The following orders are made:

1. The application for recusal by the first and fifth respondents (i.e B Xulu and Partners Incorporated and Barnabas Xulu) is refused with costs, including the fees of two counsel and the wasted costs incurred by the second applicant as a result of the postponements on 1 February, 4 and 5 March 2021.

2. The application for leave to appeal against the orders made in the anti-dissipation application on 25 and 27 November 2020 is refused

with costs, including the fees of two counsel.

3. B Xulu and Partners Incorporated and Barnabas Xulu shall be jointly and severally liable for the costs awarded in terms of paragraph 1 and the applicants for leave to appeal shall be jointly and severally liable to pay the costs awarded in terms of paragraph 2.

A.G. BINNS-WARD

Judge of the High Court

[1] There is some confusion concerning who was applying for leave to appeal. The amended application for leave to appeal refers in the heading to BXI as the ‘first applicant’ and does not name any others, while the body of the application states that ‘the applicants’ (plural) apply for leave to appeal. The heading used by counsel for BXI and Mr Xulu for their heads of argument identified four applicants for leave to appeal, namely, BXI, Incovision (Pty) Ltd, Setlacorp (Pty) Ltd and Mr Xulu. As will appear, the manner in which matters proceeded suggests that BXI and Xulu were the parties who actively prosecuted both the application for leave to appeal and the application for my recusal. It is apparent from the papers in the anti-dissipation application that Incovision and Setlacorp are companies controlled by Mr Xulu.

[2] The judgment delivered by Rogers J in the principal proceedings is listed on SAFLII sub nom. Department of Agriculture, Forestry and Fisheries and Another v B Xulu and Partners Incorporated and Others [2020] ZAWCHC 3 (30 January 2020).

[3] See the passage from Bernert v Absa Bank Ltd 2011 (3) SA 92 (CC); 2011 (4) BCLR 329 (CC) quoted in paragraph [58] below. Whether a judge is disqualified from sitting in a case falls to be determined objectively; cf. President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 9, 1999 (4) SA 147 (CC), 1999 (7) BCLR 725 (CC) in para 30.

[4] See s 18(2) of the Superior Courts Act 10 of 2013.

[5] See note 1 above.

[6] 6189/19 is the Western Cape Division case number pertaining to the principal proceedings. Most of the interlocutory proceedings, including the anti-dissipation application that came before me, have been conducted under the same case number. A copy of the judgment of Slingers J in an application to have the orders made by Smith J in the anti-dissipation application set aside in terms of rule 6(12)(c) was attached to the applicants’ counsel’s practice note. It suggests that that application by the first and fifth respondents and two other respondents to set aside the anti-dissipation order was brought under a separate case number (15314/2020).

[7] As will appear, BXI and Mr Xulu had, in their notice of application for Judge Rogers’ recusal, actually sought an order that case no. 6189/19 be heard by a judge from outside from outside the Western Cape Division.

[8] Mr Manuel quoted only a selected passage from the judgment, but I should record that I have had regard to the entire judgment, which is listed on SAFLII, sub nom. Department of Agriculture, Forestry and Fisheries and Another v B Xulu & Partners Incorporated and Others [2020] ZAWCHC 98 (10 September 2020).

[9] In para 6 of the note.

[10] See s 17(2)(a) of the Superior Courts Act 10 of 2013 and rule 49(1)(e) of the Uniform Rules.

[11] Cf. Sarfu supra, in para 10.

[12] Mulaudzi at para 43.

[13] See para [19] 3 (iii) above.

[14] In para 35.

[15] See Solomon v Law Society of the Cape of Good Hope 1934 AD 401.

[16] Note 15 above.

[17] In paragraphs [24]-[28] above.

[18] See paragraphs [31]and [54] above.

[19] Hlophe JP allocated the application for leave to appeal to Dolamo J, who granted leave.