JSA faces tough questions during application for leave to appeal against Seth Nthai's readmission

2019-07-05 19:02
Seth Nthai in the Limpopo High Court in Polokwane. (Jeanette Chabalala, News24)

Seth Nthai in the Limpopo High Court in Polokwane. (Jeanette Chabalala, News24)

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Lawyers for the Johannesburg Society of Advocates faced tough questions from the Limpopo High Court judges on Friday morning in an application for leave to appeal against a ruling in favour of Seth Nthai's readmission as an advocate. 

During arguments, Limpopo Judge President Ephraim Makgoba said he was concerned that the JSA - which the court said did not have a standing to participate in applications for readmission - wanted to use the court process to open old disciplinary proceedings against Nthai. 

The applications for leave to appeal were lodged by the JSA and Legal Practice Council (LPC). 

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

"In our judgment, we say he made a full and frank disclosure. Do you say that the court erred?" Makgoba asked advocate Paul Kennedy SC, who is representing the JSA.

"We submit that he did not make a full disclosure and another court will come to a different conclusion," Kennedy responded. 

Nthai 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.

Secret recordings

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.

During arguments on Friday, the JSA mentioned that there were allegations that Nthai had overreached in charging one of his clients, Anglo Platinum Management Services (Pty) Limited, unreasonable and unjustified amounts of money and acting for parties with conflicting interests. 

According to the JSA, Nthai had never made a full disclosure to any disciplinary body, or court, on the extent of his misconduct in relation to the allegations of his overreaching.

But Judge Makgoba said what he found "puzzling" was that, during hearings before the court, there were no arguments about the overreaching part. Makgoba said the JSA seemed to be presenting new arguments in their leave to appeal application. 

'We are not going to allow it'

"We get the impression that JSA is trying to open disciplinary proceedings through this (court) which has long passed, which we are not going to allow it. I have to be clear on that. 

"The matter of overreaching formed part and parcel of the decision to strike him from the roll. Why does it sound like the matter is still hanging? Why do you have an unfinished business with someone who is not your member?"  the judge asked.

However, Kennedy said it was never decided, during Nthai's striking off, that he was guilty of overreaching. 

He added that the JSA was simply trying to perform its function to ensure that the facts were presented to the court.

Kennedy said he believed that there were reasonable prospects of success and that another court would arrive at a different conclusion in the matter. 

'I'm very concerned about this'

Meanwhile, Judge Peter Mabuse raised concerns about why the JSA was part of the proceedings, given that they did not have a standing to participate in any readmission cases. 

"What need is there to have another body to fight this... what you need, the LPC can do," Mabuse said. 

Judge Makgoba also weighed in and asked why the JSA was seeking to appeal the matter. 

"What is the need of two parties coming in this case? Is there a need of increasing the armaments to fight? I'm very concerned about this," he said. 

But Kennedy said the JSA was not in court to fight with the LPC. 

He said, even if the appeal court ultimately upheld the approach of the High Court, and found that the bar councils no longer had a standing to participate in readmission by their members - and that this role was now in the hands of the LPC - it would still be an important question of law, which would have significance for future readmissions.

Read more on:    seth nthai  |  courts

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