For very good reasons, the bar for dealing with rogue lawyers is very high. Unlike our mere mortals, lawyers are officers of the court who dedicate their lives to upholding the rule of law, writes Adriaan Basson.
There is broad consensus, I think, in South Africa that an independent judiciary and unwavering media saved us from falling off the state capture cliff.
It was the journalists and judges who exposed and punished Nkandla, Guptagate and Bosasa.
These pillars of democracy must be strengthened for South Africa to recover and grow if we want to avoid the fate of many former democracies that floundered under the pressure of executive power-grabbing.
Our courts have by and large been excellent in upholding the rule of law and have survived a brutal onslaught by the Zuma-era elite to be battered into submission.
Which is why I am flabbergasted by the judgment of Limpopo Judge President Ephraim Makgoba and Judge Peter Mabuse two weeks ago that allowed Seth Nthai, a former senior advocate who admitted to soliciting a bribe from an Italian businessman while acting for the South African government, to be readmitted to the Bar.
Our courts have a strong tradition of acting decisively with corruption and I would have expected to read a strong anti-corruption endorsement. Instead, the judgment reads more like a poorly edited, mealy-mouthed motivation letter for Nthai with strong religious undertones and scant regard for the real concerns raised by the legal profession in their opposition to Nthai’s application.
Let’s start with the facts: Nthai is a flamboyant former senior counsel who served on the Judicial Service Commission at the pleasure of former president Thabo Mbeki. Respected by his peers, Nthai represented the government in a number of high-profile cases, including the Ginwala commission into the fitness of former prosecutions head Vusi Pikoli.
In 2010 Nthai was caught with his fingers in the proverbial till. Representing the South African government in defending a R2.2bn lawsuit from a group of Italian businesses, who claimed their mining rights had been expropriated, Nthai attempted to negotiate a settlement that would have cost the government R50m in legal costs.
Not acting in the country’s best interest, Nthai told Italian businessman Mario Marcenaro to deposit a R5m bribe into his foreign bank account in return for his influence to convince the government to settle the matter.
Unbeknownst to Nthai, Marcenaro recorded their conversations and blew the whistle when the deal went sour.
This should have been the end of Nthai’s legal career. Both the Pretoria and Johannesburg Societies of Advocates expelled him in 2010 and in 2013 he was disbarred by the high court from acting as an advocate. The case was further reported to the police (who has seemingly done very little about it in nine years).
Nthai has now made a spectacular return to the legal profession after convincing Makgoba and Mabuse that he has changed his ways, was remorseful and would never do such things again. A mere six years after being disbarred, they have agreed to give him a “second chance”.
His application was opposed by the Johannesburg and Pretoria Bar Councils, as well as the Legal Practice Council, that now governs and regulates the profession in South Africa. The Polokwane Bar Council, where Nthai is now a member, supported his application. Advocate George Bizos also wrote in Nthai’s support.
The court fully accepted Nthai’s version of his wrongdoing, that he has repented, that his depression led him to lose his way in 2010 and that he is transformed to make “contributions to the legal profession”.
For very good reasons, the bar for dealing with rogue lawyers is very high. Unlike our mere mortals, lawyers are officers of the court who dedicate their lives to upholding the rule of law. No wonder our courts have severely punished lawyers who lost their way.
In a recent case, the Supreme Court of Appeal (where this case is heading) refused to readmit an advocate who was involved in dodgy dealings 25 years ago.
“He lost sight of the fact that the legal profession plays an important role in the administration of justice and that it is not a money-making trade,” Makgoba and Mabuse wrote of Nthai.
After his disbarring, Nthai had to sell his Porsche, luxury watches and houses in Cape Town and Hartebeespoort to cover his living expenses.
The judges repeated Marcenaro’s version of events, which Nthai has now accepted as the truth under oath (this should interest the Hawks) but dealt surprisingly softly with the implications of an advocate soliciting a bribe.
The judges called Nthai “not only naïve, but misguided and dishonest” and portrayed him as a victim of a “media assault”. Really? They often referred to the “payment” he requested, instead of what it was – a bribe.
The media publicity about his bribe-seeking had a negative effect on Nthai’s health. Although I have the greatest sympathy for him and all sufferers of depression and anxiety, it shouldn’t be blamed on the media that his health took a knock after he solicited a bribe and it was exposed.
Crime isn’t supposed to pay.
The judges and Nthai’s doctors speculated that his depression may have caused him to commit the “transgression”. The same doctor advised him to forget the incident and not participate in his disciplinary hearing.
A letter from his pastor is also quoted in the judgment, saying that “God would restore heaven to him, including his position as advocate”. Nthai is praised for his community work after being disbarred, including helping to reduce a murderer’s sentence to 20 years.
The judgment ends with a quote from Martin Luther King on the power of forgiveness. This is all nice and well, and Nthai may really have acknowledged the error of his ways, but does that make him suitable to practice as an advocate again?
I’m looking forward to hearing what the SCA has to say about this.
– Basson is editor-in-chief of News24.
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