'Court failed to recognise Nthai's conduct amounted to corrupt, criminal solicitation of a bribe' - JSA

2019-06-13 21:11
Seth Nthai. (Supplied)

Seth Nthai. (Supplied)

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The Johannesburg Society of Advocates (JSA) has filed an application for leave to appeal a Limpopo High Court ruling in favour of former member of the Johannesburg and Pretoria bars, Seth Nthai, who was struck from the roll of advocates.

The High Court ruled in Nthai's favour last month - almost a decade after he was disbarred.

He admitted to serious transgressions when he tried to solicit a R5m bribe from an Italian businessman who was party to a mining rights dispute with the South African government.

At the time, Nthai had been instructed to represent the government in the legal wrangle.

Secret recordings revealed the lawyer sharing his client's confidential information with the chief executive of one of the Italian companies linked to the case.

In the audio recordings, Nthai can be heard promising a Mr Marcenaro - as he is referred to in court papers - that he would convince the government to settle the matter outside of an arbitration process in return for the R5m payment.

However, in its application filed on Tuesday in the Limpopo High Court, the JSA argued that the court had failed to recognise that Nthai's conduct amounted to the "corrupt and criminal solicitation of a bribe in exchange for the improper performance of his highest ethical duties as a counsel".

"This is the most egregious conduct imaginable for a counsel, worse even than overreaching, overcharging and double briefing," it said. 

The JSA added that the court had failed to apply the proper legal test for readmission in this matter, in that readmission would only be considered if the applicant demonstrated to the court that he had completely changed. 

While the court said the judgment was about Nthai being given a second chance, the JSA believed that it erred in this finding. 

It said the question for determination was not whether Nthai should be given a second chance, but whether he had genuinely, completely and permanently reformed. 

Also read: The baffling return of Seth Nthai

The application also highlights that the JSA and the Pretoria Society of Advocates have a record of Nthai's previous "transgressions and allegations that he overreached in charging one of his clients, Anglo Platinum Management Services (Pty) Limited, unreasonable and unjustified amounts of money and acted for parties with conflicting interests".

According to the JSA, Nthai had never made a full disclosure to any disciplinary body, or to any court, of the extent of his misconduct in relation to the allegations of his overreaching and acting with conflicts of interest in the Anglo Platinum matter. 

"As the allegations about Mr Nthai's conduct in the Anglo Platinum matter are still hanging over his head, he cannot be readmitted until the court is satisfied of the nature of his conduct on that matter."

Nthai told News24 on Thursday that he would oppose the application.

He said he had already instructed his legal representatives to lodge an urgent application for an order that the court judgment "shall operate and be executed in full, pending the outcome of the application for appeal". 

Nthai, who was once vice-president of the General Council of the Bar, admitted to the wrongdoing and breach of confidence.

The Pretoria Bar insisted he be struck off as an advocate after a disciplinary committee found him guilty. He was disbarred following an order of the High Court in April 2013.

Nthai launched an application to be readmitted on October 18, 2018.

The Polokwane Society of Advocates supported his bid, while the two Gauteng law societies opposed the application.

He also received the backing of human rights lawyer and senior counsel George Bizos who provided a supporting affidavit to the court.

Nthai testified that greed, dishonesty, poor judgement and his poor health had contributed to his actions. 

He also told the court about his "long battle with depression and anxiety", supported by testimony from medical experts who had treated him.

Limpopo High Court judges found that Nthai had shown "contrition and genuine remorse as early as March 2010 when he wrote to the state attorney in which he apologised extravagantly to his clients".

"After serving many years out of service, there can be no doubt that Nthai has learned from his mistakes and that he will, henceforth, not lend himself to similar strikeable conduct," they wrote in the judgment.

The judges also said they accepted that Nthai had an ethical and legal duty to advance the interests of the government in respect of the dispute.

"Nthai accepts unreservedly that his unethical conduct betrayed the confidence and the trust placed upon him by the government of this country."

Read more on:    seth nthai  |  polokwane  |  courts
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