- Seth Nthai was struck from the roll of advocates in 2013.
- In a labour dispute at the Commission for Conciliation, Mediation and Arbitration, one of his former employees has claimed he continued to practise as an advocate despite the court judgment.
- Nthai, who was readmitted to the Bar in 2019, has denied the allegations.
Seth Nthai is adamant that he is a changed man from the government-appointed lawyer who tried to solicit a R5 million bribe a decade ago – but a labour dispute lodged against the recently readmitted advocate by his former company secretary now threatens to seriously undermine those claims.
That's because Marietjie Jansen van Vuuren has produced evidence she says clearly shows that Nthai continued to work as an advocate after being struck from the roll in 2013, and engaged in deceptive behaviour to ensure that this unlawful conduct was not discovered.
Should that evidence remain uncontested, it could provide powerful ammunition to the legal bodies currently fighting to overturn Nthai's readmission to the Bar in the Supreme Court of Appeal.
Limpopo High Court Judge President Ephraim Makgoba and Judge Peter Mabuse last year wholeheartedly accepted that Nthai had not practised as an advocate since his highly publicised removal from the Bar and found that there was "no chance" he would break the legal profession's rules of practice in the future.
"After he had undertaken not to practise and after the removal of his name from the roll, Nthai used the time to re-discover the anchors of his existence and undertook deep self-introspection and soul searching," the High Court stated.
"He came to realise that the lapse of moral judgement was a defect of character and needed to reform which would require constant introspection, self-criticism and working hard towards reformation."
Jansen van Vuuren, however, has told the Commission for Conciliation, Mediation and Arbitration (CCMA) that one of the reasons her employment with Nthai became "intolerable" was because of his "unethical behaviour in that he continued to practise law after being prohibited by the high court to do so in 2013…and not only did he require of me to assist him in doing so but he also required me to cover up the fact that he was practising law”.
In response to queries from News24 about Jansen van Vuuren's application to the CCMA, in which she accuses Nthai of constructive dismissal and not paying her for 11 months, Nthai's attorney Jacques Theron said he was "deeply saddened and astonished by the false, sensational and baseless allegations made by Ms Jansen van Vuuren".
"We are anxious to have the merits ventilated, and expose Ms Jansen van Vuuren's true intentions; as nothing more than a desperate and scandalous attempt to solicit money from our client, by abusing the mechanisms of justice, for ulterior purposes," he said.
Jansen van Vuuren's sworn evidence, as well as the emails and legal opinions she supports it with, appear to show that Nthai worked with another advocate to provide legal opinions to a number of government entities – including in relation to a contractual dispute over the restoration of the graves of struggle heroes Steve Biko, Robert Sobukwe and Kgosi Mampuru II – while he had been struck from the roll of advocates.
Copies of emails allegedly sent from Nthai's email address appear to show that he wrote legal opinions for the Department of International Relations and Cooperation, the Department of Agriculture, Forestry and Fisheries and the Department of Arts and Culture – which he then forwarded to advocate Sophia Masimene. Jansen van Vuuren claims Masimene then fraudulently presented these legal opinions as her own and split her fee with Nthai.
'Defamatory and scandalous'
In response to queries from News24 about Masimene's response to the apparent evidence that she had acted as a "front" for Nthai and had unlawfully split fees with him, her attorney stated that she regarded these claims as "defamatory and scandalous".
Masimene's attorney has also written to Jansen van Vuuren to demand that she remove the legal opinions and emails she relies on to prove that Nthai was unlawfully practicing as an advocate, as they were "confidential".
"Our client and/or her clients have not waived the confidentiality of the documents which you disclosed unlawfully…in your dispute between yourself and your former employer."
News24 has contacted the Justice Department, which is responsible for overseeing the Office of the State Attorney – the body that coordinates all of government's court cases and determines which private advocates these cases are allocated to. Our queries specifically related to whether the State Attorney was aware of allegations that Masimene had been unlawfully funnelling government work to Nthai.
After considering the affidavit and evidence filed by Jansen van Vuuren at the CCMA, the Justice Department has told News24 that "these revelations will be brought to the attention of the Special Investigation Unit" – which is currently investigating widespread criminality at the Office of the State Attorney.
"Already 10 criminal cases have been lodged against advocates who are accused of defrauding the state of at least R136 million. With this in mind, we are confident these revelations will also receive the necessary action," the department added.
Advocate Paul Hoffman has also confirmed to News24 that he opened a criminal case against Nthai last year over his sworn statement to the Limpopo High Court – as part of his successful legal bid to be readmitted as an advocate – that he had sought to solicit a bribe from a "Mr Marcenaro" while acting for the government in a multibillion rand mineral rights dispute lodged against the state by several Italian mining businesses.
In 2007, Nthai was appointed by the State Attorney as the lead advocate to act on behalf of the government in that dispute, which was before the International Arbitration Tribunal.
Nthai's troubles started two years later, after Marcenaro – who was the CEO of one of the companies involved in the arbitration proceedings – asked to meet with him about the possible settlement of the dispute.
Marcenaro subsequently recorded Nthai asking for a R5 million bribe to ensure that it went away.
"I then told Marcenaro that if the claimants were to pay R5 million into my foreign bank account, I would use my influence to get the government to agree to settle the matter with each party paying its own costs," Nthai stated under oath.
He also told Marcenaro that he had prepared the proposal for settlement and, if the Italians agree to pay the money, he would get the government to accept the settlement proposals.
But that didn't happen. Instead, lawyers for the Italian mining companies blew the whistle on Nthai's attempt to seek a bribe, as well as his disclosure of the government's strategy in the case.
The State Attorney's Office wrote to both the Johannesburg and Pretoria Societies of Advocates, leading to the disciplinary investigation that ultimately resulted in Nthai being struck from the roll of advocates.
Hoffman remains adamant that Nthai should have been prosecuted over his admission that he had sought a bribe and that the estimated R6 million he received in legal fees from the government in that case should be recovered from him.
Up until today, Nthai's most serious punishment came in his removal from the roll of advocates – a sanction he effectively reversed last year, by persuading the Limpopo High Court that he was completely rehabilitated.
In that application, Nthai claimed he had been unable to participate in the disciplinary processes against him, because of the deep depression he had fallen into.
"The case of Dr Bongani Mayosi, of the Faculty of Health Sciences at the University of Cape Town, who recently committed suicide due to depression, came to Nthai's mind," the Limpopo High Court stated in its ruling on his readmission.
Nthai also claimed in his application that he had started a mining consultancy company – Phillipus International Consulting Services Pty (Ltd) – a year after the bribery scandal exploded.
The court viewed Nthai's work at this business as evidence of his industriousness that clearly supported the case for his readmission.
"Against all odds, Nthai managed quite clearly to employ his talent and skills to a significant contribution to the economy of the country," the court stated.
"This is a demonstration that if he is given a second chance he will continue to make contributions to the legal profession."
It is this company, Jansen van Vuuren's evidence, however, suggests, that Nthai used to unlawfully provide legal services after he was struck from the roll of advocates.
In addition to writing legal opinions, Jansen van Vuuren also claims Nthai wrote lawyers' letters for clients – and then sent those letters under the letterhead and signature of another legal firm, Bhadrish Dhaya Attorneys.
In response to queries from News24, Dhaya forwarded an email he had sent to Jansen van Vuuren, in which he accused her of unlawfully disclosing his clients' confidential information in her CCMA application. He did not respond to questions about whether he disputed Jansen van Vuuren's claims that his firm had acted as a front for Nthai to provide legal services to his clients.
While Nthai's lawyer is adamant that he will fight Jansen van Vuuren's claims against him in the CCMA, the advocate also faces a far bigger battle in the Appeal Court – where the Johannesburg Society of Advocates and General Council of the Bar have both been given leave to appeal his readmission as an advocate.
In its ruling readmitting Nthai, the Limpopo High Court had slammed both the Pretoria and Johannesburg Societies of Advocates for opposing his return to the Bar.
"It is clear that even if Nthai could state a million times that he takes full responsibility for his actions, the PSA and JSA will always regard such a statement as a mere platitude," the court said.
"Both the PSA and JSA, in our considered view, seek to portray Nthai as someone who has not appreciated the seriousness of his indiscretions. That picture is not covered by, and does not enjoy, the support of the evidence Nthai has tendered."
The JSA is adamant that this decision was clearly wrong – because Nthai's transgressions were "the worst imaginable for an advocate, indicating an inherent propensity to dishonesty".
"When an applicant for readmission has committed such conduct, it is only in the most exceptional circumstances that a court should even consider readmission. We submit that they have not been established by Mr Nthai."