Report of the disciplinary committee in Adv Seth Nthai case

REPORT OF THE DISCIPLINARY COMMITTEE APPOINTED TO INQUIRE INTO THE CONDUCT OF ADVOCATE SETH NTHAI SC

1 The Disciplinary Committee was appointed by the Pretoria Bar Council in terms of article 39(12) of its constitution, in conjunction with the Johannesburg Bar Council, after a complaint had been received by both councils from the State Attorney against Advocate Seth Nthai SC, a member of both Bars.[1] The members of the Committee are: K van Dijkhorst (a retired judge), TJB Bokaba SC (of the Johannesburg Bar) and J H Dreyer SC (of the Pretoria Bar).

2 The complaint concerns the actions of Nthai SC, who, while being counsel for the Government of the Republic of South Africa, unbeknown to his instructing attorney or opposing legal representatives, had a number of discussions with the client of the opposition with the aim of soliciting a bribe.

3 On 5 March 2010 attorneys Webber Wentzel in a reasoned letter requested access to the proceedings of the Committee for the public and the media on behalf of Avusa Media, owners of The Sunday Times.[2] After due consideration the Committee refused this request and informed the attorneys thereof in writing.[3] The attorneys were notified that the Committee would recommend to the Bar Councils that its report be made public.[4]

4 The charge sheet was filed on 15 March and despite a promise by counsel for Nthai SC that by 23 March a detailed answer thereto would be delivered, such answer was not received. At a procedural preliminary meeting [5] with counsel the Committee warned that in the absence thereof the member would be required to set out orally what his version was.

5 The hearing commenced on 25 March. Nthai SC was present and was represented by senior counsel IAM Semenya SC and an attorney MPC Manaka of Werksmans. The pro forma prosecutors were N G D Maritz SC of the Pretoria Bar and L Malan of the Johannesburg Bar.

6 At the commencement of the proceedings Semenya SC informed the Committee that Nthai would that day terminate his membership of the Johannesburg and Pretoria Bars. The chairman ruled that the hearing would continue nevertheless. Thereupon Nthai sc addressed the Committee and stated that he resigned from the two Bars with immediate effect. Nthai SC and his legal representatives were invited by the chairman to remain in attendance and participate in the proceedings nevertheless, but this invitation was declined and they then left the hearing. Later that morning two faxes were delivered which proved that Nthai had in writing resigned some minutes after 11 o’clock.

7 In view of the fact that the Committee has the duty to report on the alleged misconduct and in the light of Clause 10 (a) of the Constitution of the Pretoria Bar and Clause 10 (a) of the Constitution of the Johannesburg Bar which stipulate that membership terminates upon acceptance of the resignation by the Bar Council, the inquiry continued.

8 The charges against Nthai SC are set out in the charge sheet which is annexed hereto.[6]

9 Two witnesses were called. Mr J E Veeran, attorney of Webber Wentzel who acts for the claimants in the arbitration proceedings against the Government in which Nthai SC was involved. He handed in:

·         A letter by himself to Ellis SC dated 26 January 2010 [7];

·         Witness statement of Mario Marcenaro submitted to the ICSID Tribunal on 20 January 2010 [8]; Mr Marcenaro is the de facto CEO of Finstone s.a.r.I. one of the claimants in the litigation who acted as intermediary on behalf of the claimants and who is the person with whom Nthai SC had the discussions which gave rise to the complaint.

·         Transcripts of audio recordings of conversations between Nthai SC and Marcenaro;[9]

·         Two compact discs with audio recordings, transcribed in the 
transcripts mentioned.[10] The two compact discs were copies of the original recordings which were made by their IT department and which originals were in possession of their client.

10 The second witness was Advocate G L Grobler SC, now counsel for the Government in the arbitration. He knows Nthai SC very well. He identified Nthai’s voice on the recordings and testified that the Government’s position had been compromised by the irregular discussions between Nthai sc and Marcenaro.

11 In addition there is the fact that during the procedural preliminary meetings it was stated by Nthai’s then counsel that his client admits that the discussions between him and Marcenaro were held (but he did not admit the contents thereof.) Furthermore the compact discs were submitted to an expert by Nthai’s legal team and a report was received thereon, but this report was not submitted to the inquiry. Neither was any evidence tendered which cast doubt on the correctness of the recordings or transcripts.

12 For the reasons set out above the Committee finds that the compact discs are correct copies of the original recordings which correctly reflect the conversations between Nthai SC and Marcenaro. The Committee, having listened to the compact discs, also finds that the transcripts, exhibits C to F fairly reflect what was recorded (even though there is a lot of annoying electronic background noise on parts thereof). On the basis of the above the Committee makes the findings of fact set out in the paragraphs below.

13 On 10 October 2009 Nthai SC and Marcenaro met at the offices of attorney Maurizio Mariano where the dissension in Government circles about settling the arbitration was discussed . Nthai informed Marcenaro that if the matter was settled he would lose a substantial amount of fees and proposed that an amount of R5 million be secretly paid into his bank account, whereupon he would use his influence to get the Government to agree to settle the matter on a basis favourable to the claimants. Paragraph 2 of the charge has been proved by the statement of Marcenaro corroborated by the recording (which commenced when the discussion was already under way).

14 On 18 October 2009 Nthai and Marcenaro met at Marcenaro’s house where Nthai again attempted to persuade Marcenaro to procure the payment of the said sum of R5million by claimants to Nthai in consideration of Nthai procuring the favourable settlement. To put undue pressure on Marcenaro to attain payment, Nthai informed him that if arbitration proceedings continued this would damage the companies of the claimants and their interests, which companies would encounter problems in the future with the National Union of Mineworkers, the NGO’s and the claimant’s operations in other countries such as Zimbabwe. Paragraph 3 of the charge is found to be proved by the statement of Marcenaro and the recordings.

15 On 20 October 2009 Nthai and Marcenaro met at the latter’s house where Nthai again attempted to persuade Marcenaro to procure the payment of the said sum of R5million by claimants to Nthai in consideration of Nthai procuring the favourable settllement. They arranged to meet in Pisa, Italy, on 28 October 2009 with a view to meeting with Mr Ponzanelli of RED Graniti SA (Pty) Ltd in order to discuss payment of the sum of R5million to Nthai. Paragraph 4 of the charge is found to be proved by the statement of Marcenaro and the recordings.

16 On 28 and 29 October 2009 in Pisa Nthai met Marcenaro, but not Ponzanelli. Marcenaro conveyed to Nthai the claimants’ unwillingness to make the proposed payment of R5 million to him. Paragraph 5 of the charge is found to be proved by the statement of Marcenaro.

17 On 30 October 2009 Nthai assisted Marcenaro in drafting a letter from the claimants to the Government. Paragraphs 6 and 7 of the charge are found to be proved by the statement of Marcenaro.

18 On 2 November 2009 Nthai and Marcenaro telephonically discussed the contents of a letter sent by Freshfields,the Government’s attorneys in Paris, France, to the claimants and Nthai supplied Marcenaro with information pertaining to the Government official dealing with the matter, advised him how to respond to the letter from Freshfields and informed him what the Government’s next step would be and advised him how to respond thereto in order to obtain a favourable settlement. Paragraph 8 of the charge is found to be proved by the statement of Marcenaro and the recordings.

19 On 3 November 2009 during a telephonic conversation Nthai discussed the Request for Discontinuance of the claimants with Marcenaro and told Marcenaro not to disclose to the claimants’ lawyers that they were meeting. Paragraph 9 of the charge is found to be proved by the statement of Marcenaro and the recordings, with the exception of paragraph 9.2.3.

20 During a further telephone conversation on 3 November 2009 Nthai informed Marcenaro that the Government was working on a proposal for settlement and an agreement on discontinuance of the arbitration proceedings. Marcenaro confirmed to Nthai that the claimants had turned down his offer to procure a favourable settlement of the arbitration proceedings in consideration for the payment of R5million. Paragraph 10 of the charge is found to be proved by the statement of Marcenaro and the recordings.

21 During a further telephone conversation on 3 November 2009 Nthai and Marcenaro discussed the letter of Freshfields of 2 November and the Request for Discontinuance of the claimants and Nthai stressed that Marcenaro should not reveal that Nthai was talking to him and that Nthai could not himself reveal that he was talking to Marcenaro to settle the matter. Paragraph 11 of the charge is found to be proved by the statement of Marcenaro and the recordings.

22 On 4 November 2009 during a telephone conversation Nthai and Marcenaro discussed a letter of Webber Wentzel of that date. Nthai informed Marcenaro that he could not assist the claimants to settle the arbitration proceedings unless the discussions which he had with Marcenaro were kept confidential. Paragraph 12 of the charge is found to be proved by the statement of Marcenaro and the recordings.

23 Shortly after 4 November 2009 (but before 8 November 2009) and at a meeting at Nthai’s home in Bryanston with Marcenaro, Nthai again attempted to solicit a payment of R5 million to himself in consideration of his facilitating a favourable settlement of the arbitration proceedings. Paragraph 13 of the charge is found to be proved by the statement of Marcenaro.

24 Having regard to the above findings of fact the Committee concludes that S Nthai SC is guilty of misconduct in relation to his profession as an advocate, and which conduct is prejudicial to the interests of the Pretoria Society of Advocates and the Johannesburg Society of Advocates, of which he is a member (until his resignation has been accepted), in that:

·        he corruptly, improperly and dishonestly attempted to procure payment of a sum of R5 million to himself in consideration for advising and persuading his own client to pay its own costs in the arbitration proceedings should the claimants discontinue the arbitration proceedings;

·        he placed his own personal financial interest above the interests of his client, to the actual or potential prejudice of his client;

·        he established a relationship with Marcenaro, a representative of the claimants, which compromised the legitimate expectation of Nthai’s client that his advice with respect to the conduct of the arbitration proceedings would be honest and independent;

·        he entered into and engaged in settlement discussions with a representative of the claimants, without any authority to do so, and with a view to advancing his own personal financial interests rather than the interests of his client;

·        he disclosed privileged and confidential client – legal representative information to the opposing party, to the actual or potential prejudice of his client;

·        he betrayed the confidence which his client and his instructing attorney had placed in him to honestly, objectively and independently advance its interests in the arbitration proceedings.

25 The Committee recommends

1 That the membership of Seth Nthai SC of both the Johannesburg and Pretoria Societies of Advocates be terminated forthwith;

2 That steps be taken to have his name removed from the roll of advocates in terms of section 7 of Act 74 of 1964;

3 That this report be sent to Nthai SC and made available to the media.

Signed on 
K van Dijkhorst Chairman

6 April 2010

J DreyerSC

T J B Bokaba SC

FOOTNOTES

[1] Annexure 1: Letter dated 22 January 2010 
[2] Annexure 2; Letter dated 5 March 2010 
[3] Annexure 3 Letter dated 16 March 2010. 
[4] Annexure 3 paragraph 8 
[5] On 15 March 2010 
[6] Annexure 4 The following amendments were effected during the hearing: In paragraph 1.7 the word London’; in paragraph 6.1 the date was changed to 30 October; in paragraph lithe date was changed to 3 November 
[7] ExhibitA 
[8] Exhibit S. Irrelevant portions were blanked out by the attorneys.
[9] Exhibits C, D, E and F of discussions on 18/10/09, 10/10/09, 20/10/09 and several between 2/11/09 and 4/11/09 
[10] Exhibits G and H