- The CCMA found Seth Nthai's former secretary failed to provide credible explanations for her delay in launching the case.
- She blamed her mental state after her resignation, among others, for her delay.
- The application was dismissed by the CCMA.
The Commission for Conciliation Mediation and Arbitration (CCMA) has dismissed an application by advocate Seth Nthai's former company secretary for permission to sue him for constructive dismissal - in a case in which she made damaging claims he had been practicing as an advocate after being disbarred.
Nthai has admitted to attempting to solicit a bribe in 2009, while he was acting for the South African government, during his successful application to be readmitted as an advocate.
The CMMA found his secretary, Marietjie Jansen van Vuuren, failed to provide any credible explanation for her "excessive" delay in launching the case.
Commissioner Prince Kekana found the explanation given by Jansen van Vuuren for her 155-day delay in launching legal action against Nthai, which she blamed on her mental state after her resignation, poor legal advice, bad cellphone reception and her own inadequate knowledge of CCMA processes, "fell far short of the entire period of the delay".
"[Jansen van Vuuren] failed to act with speed. I found that considering the prospects of success would not save the application," he said.
Kekana's ruling, if it stands, will block Jansen van Vuuren from pursuing her constructive dismissal case against Nthai, who she claims had continued to practice as an advocate after he was struck from the roll after being recorded soliciting a R5 million bribe from Italian businesses locked in a dispute with the state over mining rights, which the Italians had wanted to settle.
Jansen van Vuuren confirmed she would seek to challenge Kekana's decision in the Labour Court.
Nthai was recorded, on multiple occasions, not only promising to make the case go away if the businesses paid the bribe to him into a foreign account, but also disclosing key aspects of the government's strategy in fighting the case to one of the Italian CEOs involved in it.
Limpopo High Court Judge President Ephraim Makgoba and Judge Peter Mabuse last year wholeheartedly accepted that Nthai had not practiced as an advocate since his highly publicised removal from the bar in 2013, and found there was "no chance" he would break the legal profession's rules of practice in the future.
They ruled he should be readmitted as an advocate, a decision that is now the subject of an appeal by the General Council of the Bar and Johannesburg Society of Advocates.
Jansen van Vuuren has, however, produced emails, letters and legal opinions that she said clearly showed Nthai was doing work for a number of different government departments while he was disbarred.
Her evidence now forms part of a Special Investigating Unit (SIU) probe into allegations of fraud and corruption at the State Attorney's office, with the unit recently seizing Jansen van Vuuren's hard drive, laptop and smartphone, so that investigators could make a copy of the data contained on the devices.
The State Attorney's office is responsible for appointing advocates to provide legal services to the state.
The SIU's investigation is probing evidence of collusion between the State Attorney's office and legal practitioners and has already resulted in 10 criminal cases being lodged against advocates who are accused of defrauding the state of R136 million.
Nthai has strongly denied that he practiced as an advocate after being struck from the roll of advocates and claimed Jansen van Vuuren's claims were motivated by her desire to extort money from him.
Kekana heard that after previous efforts by Janse van Vuuren's legal representative to settle the case with him, Nthai's lawyer did, however, offer to pay her five months’ salary if she withdrew "all allegations pertaining to any impropriety on the part of Adv Seth Nthai SC and in particular any allegations pertaining to him performing and acting as an advocate while disbarred".
The settlement offer further required Jansen van Vuuren to withdraw "all and/or any allegations that Adv Seth Nthai SC committed any acts of fraud and/or corruption during the period that he was disbarred" and "categorically" state "that the allegations made pertaining to Adv Seth Nthai SC acting and performing as an advocate and/or practicing law to any extent during his period of disbarment were incorrect and false".
As part of the deal, Jansen van Vuuren would also have to sign an apology, prepared by Nthai and his lawyers, in which she withdrew and apologised for her allegations he had practiced while he was disbarred and apologised for "any embarrassment, hurt and public humiliation caused by my actions".
Jansen van Vuuren refused the settlement offer on the basis that she was asked to perjure herself "by making a public statement that I lied under oath while I have in fact, not lied under oath".
In an email response to questions about why Nthai had made such a settlement proposal if he believed Jansen van Vuuren was trying to extort money from him, his attorney, Jacques Theron, stressed Nthai had not initiated any potential settlement of the case but was responding to a settlement offer previously made by Jansen van Vuuren.
He declined to comment on the terms of the settlement proposed by Nthai.
Theron further insists that Jansen van Vuuren is “by her own admission… a liar; willing to lie to advance her own interests.
In his ruling on Jansen van Vuuren’s application for permission to sue Nthai, Kekana found that she had failed to take the CCMA “into her confidence” in her explanation for why she had delayed in filing her constructive dismissal case against the advocate.
He further found that her admissions that she had lied to an investigator about Nthai not practising as an advocate when he was disbarred and had dishonestly told Nthai that she had other employment “destroyed her credibility”.
Theron has told News24 that Kekana’s ruling “vindicates and confirms what Advocate Nthai SC has stated all along that Jansen Van Vuuren is a stranger to the truth; and will make any allegation; whether totally divorced from all truth or not; in order to further her own hidden agenda and interests”.
“She had no qualms in dragging Adv Nthai’s good name through mud to satisfy her appetite for lying”.
In response to subsequent queries from News24, Theron confirmed that Kekana’s ruling had not, in fact, made any findings on Jansen van Vuuren’s claims that Nthai had continued to practise as an advocate after being disbarred.
Kekana’s ruling came days after Nthai agreed to withdraw from defending the department of Home Affairs in a potentially crucial challenge to sections of the new Refugees Amendment Act, after parties in the case raised concerns about his involvement in the case – given that his right to practise as an advocate is currently being challenged in the Supreme Court of Appeal.
The General Council of the Bar, which is one of the legal bodies who contend that Nthai is not fit to practise as an advocate, remain adamant that he should not continue to work while his readmission is being appealed.
In a letter sent to Judge Elizabeth Baartman on 17 August, State Attorney Tanya Lombard said her office had been informed by Nthai that he had decided to voluntarily withdraw as counsel for Home Affairs in the Refugees Amendment Act case.
“He has informed us that he has taken the decision solely in the interests of the clients,” Lombard said. “The matter ought to be allowed to proceed without being hindered by other issues not connected to protecting the interests and rights of clients”.