South Africa: Johannesburg Bar to Apply for Leave to Appeal Seth Nthai Ruling

The Johannesburg Bar says it intends to apply for leave to appeal a Limpopo High Court judgment allowing Seth Nthai to be readmitted as an advocate.

Nthai secured the victory last month - almost a decade after he was disbarred - and he is now part of the Polokwane Bar.

Johannesburg Bar chairperson Ian Green SC confirmed to News24 that the Bar intended to lodge an application for leave to appeal.

"Our team is drafting the application. We have, through our attorneys, advised Nthai that we will be applying for leave to appeal," he said.

"The reason we think another court will come to a different conclusion is because we hold the view that Nthai is not a fit and proper person to practise given the conduct for which he was struck and we hold the belief he did not make a full disclosure of all the relevant information to the court that heard the readmission application.

"We believe that the threshold set by the recent SCA decision in the Edeling matter was not met by Nthai."

Different conclusion

The General Council of the Bar of South Africa (GCB) says it also intends to enter the fray.

GCB chairperson, Craig Watt-Pringle, told News24: "We consider the nature of the misconduct so serious that it seems to us questionable whether he is a candidate for readmission."

He said the GCB believed an appeal court would come to a different conclusion.

Meanwhile, the Pretoria Bar and the Legal Practice Council (LPC), respondents in Nthai's application for readmission, have yet to decided on a way forward.

"The Pretoria Bar is considering its position," said deputy chairperson Sarel Wagener SC.

Wagener declined to comment further.

LPC acting executive officer Charity Mhlungu, said the council was still reviewing the judgment.

The LPC had applied to the high court for an order directing the Minister of Mineral Resources and the office of the state attorney to file a report on the decision on whether to lay a criminal charge.

But the court dismissed this.

Nthai was a member of the Johannesburg and Pretoria bars before he was struck from the roll.

He admitted to serious transgressions when he tried to solicit a R5m payment from an Italian businessman who was party to a dispute with the South African government over mining rights. At the time, Nthai had been instructed to represent the government in the legal wrangle, News24 previously reported.

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.

The state attorney's office - who appointed Nthai as the lead counsel on the matter - laid a complaint with the Johannesburg and Pretoria bar councils. The councils are now known as the Johannesburg Society of Advocates (JSA) and Pretoria Society of Advocates (PSA).

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 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.

Judges Makgabo and Mabuse 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."

The judges said the PSA, JSA, the GCB and LPC have submitted that the refusal to accede to the late request to remove the matter from the roll and the "unjustified, irregular and late request for information" show that Nthai remains unfit to be readmitted.

"We do not agree with this technical submission which has no factual basis. We are satisfied that sufficient objective facts have been placed before this court that Nthai is now a fit and proper person to practice as an advocate again."

News24

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