South Africa, Pretoria – One of the country’s top advocates could possibly face criminal charges for alleged corruption. In a scathing judgment, the Supreme Court of Appeal overturned the Polokwane High Court decision to readmit Seth Nthai SC as an advocate.
Five judges questioned why Nthai had never faced criminal charges and ordered that a copy of this latest judgment be sent to the director of public prosecutions.
Nthai was in April 2013 struck from the roll of advocates in the Gauteng High Court, Pretoria, after he tried to solicit a R5 million bribe from Italian businessmen embroiled in legal proceedings with the government over mining rights.
Nthai, who appeared for the government, told one businessman he would persuade his client to settle if the Italians paid him R5m.
These negotiations were partially recorded by businessman Mario Marcenaro and it served as evidence in the disciplinary hearing against Nthai and eventually led to his fall. At the time of being struck from the roll he made legal history as he was only one of a very few senior counsels (silks) to be ever ousted from the profession.
Nthai was the first safety and security MEC in Limpopo, the first black chairman of the Pretoria Bar and vice-president of the General Council of the Bar. He became a senior counsel in 1988. Apart from the bribe he tried to solicit, it was also claimed he received a monthly retainer from Anglo Platinum, starting at R270 000 a month. This escalated to R330 000 a month. The court was told in 2013 that Nthai then demanded a further payment from the mining giant of R3m.
He was once held in high esteem by his colleagues and then president, Jacob Zuma, granted him Silk status at the time on their recommendation.
Referring to the attempt to solicit a R5m bribe, Supreme Court Judge Nathan Ponnan said “no thought whatever was given to his client (the government) or the people they represent, the citizenry of this country”.
“It was a staggering breach not just of almost every conceivable ethical duty of counsel, but also the most basic standards of human decency. The advocates’ profession is founded on the principle that an advocate should fiercely uphold his client’s interests,” he said.
In 2018 the Polokwane court readmitted Nthai after medical and psychological experts gave detailed accounts that he had suffered from depression. That court found that the depression and the anxiety he suffered from explained his conduct.
But the five judges questioned this and said the high court could not justifiably have concluded that there is any assurance that the character flaws which resulted in the transgressions – in particular dishonesty and greed – would not recur if he was readmitted to practice.
Judge Ponnan said that based on Nthai’s own version, there was no doubt that the attempt to solicit a bribe constituted a serious crime. Yet this was surprisingly something he was never charged with, the judge said.
In the preamble to his judgment, he commented: “‘The slippery slope from ambition to greed to dishonesty is a pithy, yet apt introduction to this appeal…”