Nthai v Pretoria Society of Advocates and Others (6271/18) [2019] ZALMPPHC 23 (24 May 2019)

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[2019] ZALMPPHC 23
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Nthai v Pretoria Society of Advocates and Others (6271/18) [2019] ZALMPPHC 23 (24 May 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER
JUDGES: YES/
NO
(3)
REVISED
CASE NUMBER: 6271/18
DATE: 24 May 2019
SETH
AZWIHANGWISI NTHAI
Applicant
V
PRETORIA
SOCIETY OF
ADVOCATES
First Respondent
JOHANNESBURG
SOCIETY OF ADVOCATES
Second
Respondent
POLOKWANE
SOCIETY OF ADVOCATES
Third Respondent
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Fourth
Respondent
JUDGMENT
THE
COURT
:
MAKGOBA JP et MABUSE J:
[1]
This
is an application by the Applicant, Seth Azwihangwisi Nthai
("Nthai"), to be re-admitted as an advocate. When the

application was launched on 18 October 2018, it was done in terms of
the provisions of the Advocates Admission Act 74 of 1964 ("the

AAA") read with the provisions of sections 24(1), 115 and 116 of
the Legal Practice Act No. 28 of 2014 ("the Act").
The AAA
has since been overtaken by the Act which came into operation on 1
November 2018. On that date the Act repealed the AAA.
[2]
THE PARTIES
2.1
In these proceedings Nthai describes
himself as an adult male currently residing at house no. 4, 18
Eccleston Crescent, Bryanston,
in the Province of Gauteng.
2.2
The First Respondent, the Pretoria
Society of Advocates ("PSA"), and the Second Respondent,
the Johannesburg Society of
Advocates ("JSA"), are
voluntary associations of advocates practising predominantly in the
Gauteng Division and Gauteng
Local Division.
2.3
Polokwane Society of Advocates ("POLSA")
is the Third Respondent. It does not oppose Nthai's application but
instead supports
it.
2.4
The South African Legal Practice Council
is the Fourth Respondent.
[3]
Nthai
was a member of the PSA and the JSA. His name was removed from the
roll of advocates at the instance of the PSA by the order
of the
Court granted on 15 April 2013.
3.1
He now seeks to be re-admitted as an
advocate of this Court in terms of the provisions of the Act. In
terms of the Act, he seeks
to be re-admitted as a legal practitioner
and be enrolled as an advocate of the High Court. The application is
opposed by all the
Respondents save POLSA.
3.2
"This judgment is about being
given a second chance. It concerns the question whether the four
applicants
.....
who
were struck from the roll of advocates on 29 November 2011 should be
re-admitted as advocates of this Court.
"
See Ex Parte Pillay and Others Case No. 29768/2012 [par 1] Gauteng
Division, Pretoria. Likewise this judgment is about Nthai
being given
a second chance. Likewise it concerns the question whether Nthai
should be re-admitted as an advocate of this Court.
Considering the
circumstances under which Nthai's name was removed from the roll, the
fundamental question to be answered in this
application is whether
there has been a genuine, complete and permanent reformation on
Nthai's part. In
Law Society,
Transvaal v Behrman 1981(4) SA 538
(A) at 557 BC (Behrman") the Court had the following to say:
"Where a person whose name
has previously been struck off the roll of attorneys on the ground
that he was not a fit and proper
person to continue to practise as an
attorney applies for his re-admission, the onus is on him to convince
the Court on the balance
of probabilities that there has been a
genuine, complete and permanent reformation on his part; that the
defect of character or
attitude which led to his being adjudged not
fit and proper no longer exists; and that, if he is re-admitted, he
will in future
conduct himself as an honourable member of the
profession and will be someone who can be trusted to carry out the
duties of an
attorney in a satisfactory way as far as members of the
public are concerned."
This test was applied with
approval in Swartzberg v Law Society of the Northern Provinces
2008(5) SA 322 (SCA) paragraph [22]("Swartzberg").
THE
BACKGROUND
[4]
It
is otiose at this stage to deal with the preliminary point of lack of
jurisdiction on the part of the PSA and JSA as raised by
Nthai. As
agreed in Court, we will deal with that aspect with the merits so
that the judgment in the end accounts for both the
issues regarding
jurisdiction and the merits of the matter.
HISTORY
AND BACKGROUND OF NTHAl'S ETHICAL TRANSGRESSIONS
[5]
According
to his evidence Nthai's first duty is to make a full and frank
disclosure and to explain fully the circumstances that
led to his
name being removed.
5.1
Nthai sets out the history and
background to his ethical transgressions which led to the application
for the removal of his name
from the roll of advocates as follows.
5.2
On 8 November 2006 eleven Italian
claimants requested the Washington based International Centre for
Settlement of Investment Disputes
("ICSID"), to arbitrate
in the dispute between them and the Government of the Republic of
South Africa ("the Government")
over their investments in
South Africa. The dispute between those claimants and the Government
in the said arbitration culminated
in the case of Piero Forestee and
Others v The Government of the Republic of South Africa.
5.3
The dispute arose from the introduction
of a new mining law in South Africa, namely, the Mineral and
Petroleum Resources Development
Act 28 of 2002 ("MPRDA")
and the Mining Charter which provided for the lapsing of registered
mineral rights and the vesting
thereof in the State;
5.4
The claimants had shares in South
African registered companies, namely The Marlin Holdings Ltd, the
Marlin Corporation and the R.E.D.
Graniti SA (Pty) Ltd ("RED
Graniti"). The claimants contended that the two instruments were
unfair and discriminatory
and were tantamount to expropriation of
their investments. They claimed compensation in the sum of R2.2
billion from the Government.
5.5
As a result the claimants sought
recourse on the basis of two Bilateral Investment Treaties concluded
between the Republic of South
Africa and the Government of the
Italian Republic on the Promotion and Production of Investments
signed in Rome on 9 June 1997
as well as the agreement between the
Republic of South Africa and the Belgo-Luxenborg Economic Union
signed in Pretoria on 14 August
1998. The claimants further contended
that the MPRDA and the mining charter contravened the Bilateral
Investment Treaties.
5.6
In the year 2007 Nthai was appointed by
the State Attorney, Pretoria, as the lead counsel to act on behalf of
the Government in
the dispute before the International Arbitration
Tribunal ("IAT"). The departments of the Government that
were involved
in such proceedings and on behalf of which he was
acting were the Departments of Trade and Industry and Mineral and
Energy, as
it is now known.
5.7
The State Attorney briefed him and
appointed a law firm based in France, namely Freshfields, to
represent the Government in the
said arbitration. The claimants in
the said arbitration proceedings were represented by Webber Wentzel
("WW"), a law
firm based in Johannesburg. WW had later
instructed a British Barrister, by the name of Landau QC, to act for
the claimants.
5.8
The Government defended the claim and
filed its Counter Memorial. The claimants were due to file their
reply. The matter was set
down for hearing from 12 to 23 April 2010
in The Hague, Amsterdam. On 30 March 2009, pursuant to the parties'
agreement, the Arbitration
Tribunal issued an order suspending the
proceedings for two months until 28 May 2009, so that the parties
could pursue settlement
negotiations through counsel.
5.9
On 27 May 2009 the parties again jointly
requested the Arbitration Tribunal the stay of proceedings for a
further three weeks. This
joint request included the agreement that
any proposals for settlement or discontinuance would be communicated
by the parties'
legal counsel to the other's legal counsel.
5.10
The claimants wanted to withdraw from
the proceedings but could only do so with the consent of the
Government. Rule 52 of the Procedural
Rules of the ICSID states that
the claimants could withdraw with the consent of the other party.
Therefore, the payment of costs
became the main and contentious
issue. At that stage the Government costs stood at €5 million
which by South African exchange
rate was about R50 million.
5.11
In addition the Government had already
paid €80,000 in advance as the administration costs. So if the
claimants wanted to withdraw
in terms of the said Rule 52, the
question of €5 million or (R50 million) and €80,000 of
administration costs became
an elephant in the room.
5.12
As counsel for the Government, Nthai,
had an ethical and legal duty to advise the Government in respect of
the dispute. He accepts
that his ethical conduct betrayed the
confidence and the trust placed upon him by the South African
Government.
NTHAl'S
EVIDENCE WITH REGARDS TO THE EVENTS THAT LED TO HIS ETHICAL
TRANSGRESSIONS
[6]
We
now deal with the evidence of Nthai regarding the events that led to
his ethical transgressions. These are events that arose
from a series
of meetings that Nthai had with a certain Mr Marcenaro at various
places and on various dates, in particular, on
9, 10, 18, 20 and 28
October 2009. We will deal with the events of each meeting.
6.1
9 October 2009: meeting at Maestro
Restaurant
6.1.1
During September 2009 Nthai was briefed
by a certain Maurizio Mariano on several matters. Mauriano was an
attorney of Italian origin
of the firm Biccari Bolo Mariano
Incorporated in Johannesburg.
6.1.2
On 9 October 2009 Mariano invited Nthai
for lunch at Maestro Restaurant in lllovo, Johannesburg. Marcenaro,
who was the CEO of one
of the companies involved in the arbitration
proceedings, requested a meeting with Nthai. Nthai had met Marcenaro
in London in
one of the pre-arbitration meetings. He agreed to meet
Marcenaro who flew to South Africa from Italy on 9 October 2009 and
arrived
in the morning of 10 October 2009. Nthai knew or at least
suspected that Marcenaro wanted to discuss with him the issue of
costs
which had stalled the arbitration proceedings.
6.2
Meeting of 10 October 2009 at the
Mariano Office
6.2.1
On 10 October 2009 Mariano drove with
Nthai to his offices. Upon arrival Mariano made his boardroom
available for the meeting between
Nthai and Marcenaro. Marcenaro said
that the issues he would like to discuss with him should not be
shared with lawyers on both
sides. Nthai responded by saying that it
all depended on the issues that he, Marcenaro, would like to raise
with him. Marcenaro
then told him that the claimants had realised
that he was an important lawyer in South Africa who was trusted by
the Government
and the ANC. He furthermore told him that he wanted to
have future relations with him so that he could help their companies
in
South Africa and other countries where they had operations.
Marcenaro had told Nthai that some of the claimants were convinced
that it was not necessary to continue with the case as they did not
want to antagonise the Government. He told him that they had

requested their lead counsel to give them an opinion to confirm that
position. They promised to share with him the opinion to be
furnished
to them. He pointed out that RED Granite wanted the case to continue.
6.2.2
The next thing, Marcenaro asked him what
the best way was to have the matter settled without involving
lawyers. Nthai explained
to him that since the Tribunal was seized
with the matter it would be difficult to have the matter settled
without involving the
lawyers. He advised Marcenaro to request his
lawyer to send a letter to Freshfields with a proposal the following
week and that
step would trigger some discussions between the
parties. He then reminded Marcenaro that the Government was not
averse to settlement
and that the last attempt to settle the matter
was aborted by his own lawyers who adopted the stance that if the
Government wanted
the claimants to pay costs they would rather
proceed with the arbitration process. Nthai told him that there were
factions in Government
and one faction wanted the matter to proceed.
He also told him that, in his view, the claimants had a weak case and
were ill-advised
to launch the proceedings. Marcenaro then asked
Nthai if he was prepared to help them to have the matter settled.
6.2.3
Nthai then told Marcenaro that if the
claimants were to pay R5 million into his foreign bank account he
would use his influence
to get the Government to agree to settle the
matter with each party paying its own costs. Furthermore, he told
Marcenaro that he
had prepared the proposal for settlement and if the
claimants agree to pay the money he would get the Government to
accept the
settlement proposals. Marcenaro then told him that he
would discuss his proposals with his partners. Nthai, however,
cautioned
him strongly against disclosing their discussions to other
parties.
6.2.4
Nthai then proceeded to give him the
terms of withdrawal along the lines as captured in the recordings. He
told him to write down
the terms of withdrawal in his own handwriting
so that
"it does not come from
me''.
Nthai states that the terms of
the withdrawal were couched in a strong language in the sense that
the claimants were required to
accept that the provisions of the
MPRDA and the Mining Charter did not violate any of the Bilateral
Investment Treaties [BIT] and
International Law. He added that the
claimants ought to accept that the Mining Charter in the context of
the South African history
was a novel instrument geared towards
allowing previously disadvantaged individuals, including women, to
enter the mining industry.
At that stage he could see Marcenaro
shaking his head to show his disapproval. He understood his reaction
as he had then touched
on the raw nerve and those were the bases of
their claims. It is important to point out that Nthai mentioned that
the claimants
would pay 100% of the ICSID administrative costs and
fees and each party to pay its own costs.
6.2.5
At that meeting he and Marcenaro agreed
that Nthai would visit Piza, in Italy, to see their operations in
Carrara and that he, Marcenaro,
would also introduce him to his
father-in-law and other claimants. He told Marcenaro that he had
scheduled a meeting in Europe
for other business. He then suggested
that they should try to come and visit Piza during their trip to
Europe. They exchanged numbers
and email addresses. He got an
impression that Marcenaro was not opposed to the issue of payment as
he neither objected nor showed
any disapproval.
6.2.6
Marcenaro and Nthai continued to
communicate telephonically whilst he was in Italy. In one of the
conversations Marcenaro indicated
to Nthai that he, Marcenaro, had
disclosed their discussions to the claimants including those from RED
Granite. They agreed to
meet on 18 October 2009 at his house in
Sandhurst. It is important to point out that in his founding
affidavit Nthai had stated
that he had agreed to meet on 18 October
2018 at his house in Sandhurst, Johannesburg. We accept that the date
of 18 October 2018
was incorrect and should actually be 18 October
2009.
6.2.7
According to Nthai Marcenaro recorded
part of their conversation without his knowledge.
6.3
Meeting on 18 October 2009 at
Marcenaro's house
6.3.1
On 18 October 2009 he met Marcenaro at
his house in Sandhurst. Marcenaro again recorded their conversation
without his knowledge.
The recording devices were secretively placed
in the living room or formal lounge. He says so because when he
arrived at that house
he went outside in the verandah as he
appreciated the house, the garden and the size of the erf.
6.3.2
Whilst they were outside they were
talking about the house. They then proceeded to the lounge. On this
day Marcenaro confirmed that
he, Nthai, was coming to Italy which was
an indication that the visit to Italy was discussed on 10 October
2009.
6.3.3
At that meeting they spoke about other
issues and he said
"anyhow
coming to our problems, our issue''.
Marcenaro
then said that the Italian shareholders were not happy with the
proposal. He further said
''and they
are not willing, you know, if the Government feels this is the right
thing, great, but to have to compensate people separately,
no,
really."
Nthai understood him
to mean that if the Government feels that those were the terms of the
withdrawal, the shareholders were not
willing to accept it and that
they were not willing to compensate Nthai separately. He said that he
was in an "awkward position"
as the two of them had spoken.
He then confirmed that he stopped his lawyers from sending the letter
to Freshfield as they had
agreed at their first meeting. He continued
and said that:
''lt
is either a clean deal
above board, you know, where the problem goes away, or we are honest
people
...
they really have been quite forceful."
Marcenaro continued to say if Nthai continued and told the
Government to stop, it would be a
"big loss of income''.
He
understood him to mean that the Italian shareholders wanted the
matter settled without any condition and that they were not prepared

to agree to make any payment to him. Furthermore, that if the
proceedings stopped Nthai stood to lose income. At that stage, he

asked Marcenaro whether he wanted to continue as agreed between the
two of them. His response was that
"no, they would find a
reasonable way out."
The claimants wanted a further
discussion. In the context of the discussion on that day Nthai
understood Marcenaro to mean that
the terms of the withdrawal as
envisaged by him and the reward for him were unacceptable.
6.3.4
Nthai told Marcenaro that he, Nthai, was
prepared to
"close the deal'.
He
told Marcenaro that he would lose income and that if the matter was
not heard he would still be paid. It was accordingly up to
Marcenaro
to decide what to do. During this meeting Marcenaro extended an
invitation to him to visit Italy and meet with the shareholders
and
express his views. It would be better for him to hear the rejection
directly from the claimants. They spoke about Marcenaro
and Nthai's
work and Nthai told him that DME wanted the case settled.
6.3.5
Nthai accepts that it was improper for
him to discuss with Marcenaro the position of his client.
6.3.6
He further impressed it upon Marcenaro
that he should not disclose to the claimants' lawyers that he had
been discussing a possible
settlement with him. They then agreed to
meet again on Tuesday, 28 October 2009.
6.4
Meeting of 20 October 2009 at
Marcenaro's house
As they had agreed on 18 October
2009, Nthai and Marcenaro again met on 20 October 2009 at Marcenaro's
Sandhurst house. The purpose
of that meeting was to discuss Nthai's
travelling arrangements to Italy. At that particular meeting he and
Marcenaro discussed
fully payment of the R5 million. At this meeting
Nthai agreed to pay Marcenaro a visit in Italy on 28 October 2009.
6.5
Meeting of 28 October 2009, the
Italian dinner meeting
6.5.1
As
agreed with Marcenaro on 28 October 2009 Nthai visited Italy. During
the discussions they had, Marcenaro told him that he was
still
committed to their arrangements. He told Nthai furthermore that after
the case had been settled he would still make good
on his commitment
for payment even though the claimants were not willing to get
involved in any side deals. Nthai asked Marcenaro
whether the
claimant from R.E.D. Graniti had agreed to discontinue the
proceedings and about the opinion of Landau QC.
[7]
Nthai
admits that his conduct was manifestly unethical and that he was
wrong to discuss with Marcenaro the confidential information
of his
clients. Moreover the conversations and meetings were held without
the knowledge of his clients, colleagues at Freshflields,
the State
Attorney, officials of Government and opposing lawyers of the
claimants and WW. He was aware that he compromised the
interests of
his clients and committed serious ethical breaches.
[8]
In
responding to the meetings that Nthai has referred to in his
affidavit, Mr Patrick Ellis ("Mr Ellis"),the deponent
of
the PSA answering affidavit, stated that he has no personal knowledge
of the contents thereof and therefore does not place them
in issue.
He confirmed that he already has commented that the applicant's
rendition of events therein contained largely coincided
with the
version of events that is already a matter of public knowledge. This
means that the PSA and JSA admit that Nthai has not
omitted anything
material relating to the said meetings. It was at these meetings that
Nthai's transgressions took place. All of
the conversations were
recorded.
[9]
Accordingly,
this Court concludes that, with regard to the history and background
of his transgressions at the said meetings:
9.1
Nthai has made a full disclosure. He has
therefore satisfied the requirements set out in Kaplan v Incorporated
Law Society Transvaal
1981(2) SA 762
[TPD]
("Kaplan") where the Court
had the following to say:
''lt
was important that the
information should have been detailed and complete, because an
applicant for re-admission should make full
disclosure of his
misdeeds. His misdeeds are vitally relevant to the question of
re-admission.
See page 792
D-E."
[10]     It is
of supreme importance to point out that:
10.1
the said Marcenaro had, without Nthai's
knowledge, recorded all their discussions at the meetings Nthai has
referred to;
10.2
transcripts of the said recorded
discussions were made available to both the PSA and JSA;
10.3
the said PSA and JSA had the advantage
of reading the transcripts;
10.4
they were therefore placed in a better
position to compare the description of events by Nthai with the copy
of the transcript;
10.5
that they have found no discrepancies.
[11]
If
there were any discrepancies, the PSA and JSA would have pointed them
out.
[12]
This
Court accepts 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.
[13]
Nthai
has, in our considered view, made a full and frank disclosure of the
issues discussed including the amount of R5 million in
return for him
using his influence to secure the terms of withdrawal favourable to
the claimants. This included the claimants not
even having to pay the
costs of the arbitration.
[14]
Nthai
admits that his conduct was manifestly unethical and that he was
wrong to discuss with Mr Marcenaro the confidential information
of
his client, especially in the light of the fact that the
conversations and meetings were held without knowledge and
authorisation
from his client, colleagues at Freshfields, State
Attorney, officials of the Government and the opposing attorneys and
WW. He concedes
that he compromised the interests of his client and
committed ethical breaches of serious proportions.
FURTHER DISCLOSURES: HOW
NTHAI WAS EXPOSED AND HOW THE PSA AND THE JSA BECAME INVOLVED IN
NTHAl'S TRANSGRESSIONS
[15]
On
30 October 2009 the claimants' legal representatives addressed a
letter dated 30 October 2009 to Mr Rob Davis, the Minister of
Trade
and Industry and another one to Ms Suzan Shabangu, then the Minister
of Mineral Resources. In these letters they had proposed
that the
ICSID proceedings should be discontinued.
[16]
The
claimants' legal representatives informed the said Ministers that
discussions regarding the withdrawal by the claimants of their
claims
against the Government and the discontinuance of the ICSID
proceedings had taken place between a senior representative of
the
respective Departments and the representative of the claimants. The
letters to the Ministers contained furthermore a proposal
that each
party should bear its own legal costs and associated costs of the
proceedings and that the costs of the proceedings were
to be shared
equally by the parties.
[17]
Freshfields
responded to the said letter and complained that the claimants wrote
directly to the Ministers and thereby bypassed
the Respondents'
counsel. They pointed out to WW that it was improper for the legal
representatives of the claimants to bypass
counsel for the
Government. The said letter was signed by Freshfields by putting
Nthai's electronic signature onto it. Nthai did
not see the letter
before it was sent away.
[18]
On
2 November 2009 the claimants' legal representatives filed a Request
For Discontinuance of the Arbitration Proceedings. In the
said
Request For Discontinuance the claimants' legal representatives had
stated that they had discussions about settlement with
the
"senior
representative of the Respondent."
It
became clear to Nthai that the words "senior representative of
the Respondent" referred to him. It then dawned upon
Nthai that
Marcenaro had disclosed the conversations to the Arbitration
Tribunal, his lawyers and the Government.
[19]
On
2 November 2009 Marcenaro telephoned Nthai. During this telephone
conversation Marcenaro complained to Nthai about his, Nthai's,

signature in the letter by the claimants' legal representatives.
Nthai advised Marcenaro that they should respond by stating that
the
allegations were unfair and further that they had been communicating
with a certain Iqbal Sharma ("Sharma") about
the settlement
and that he had advised them to write directly to the Minister.
Before the letter could be despatched to the Ministers,
Marcenaro
sent it to Nthai who approved its contents by suggesting that they
should put in a sentence that stated that
"The
MPDRA and the Mining Charter do not violate International Law."
In that form the letter was sent to
the two Ministers and to Freshfields on 31 October 2009.
[20]
On
2 November 2009, Minister Davis, acting on behalf of both the
Departments of Trade and Industry and Mineral Resources, replied
to
the letter of the claimants. He informed them that seeing that the
proposed terms of settlement constituted legal matters and
seeing
furthermore that the Government was represented by its counsel in the
arbitration and that counsel received instructions
from the
Government, they should direct their correspondence to the
Government's legal representatives.
[21]
On
2 November 2009 Freshfields wrote a letter to WW and informed them
that the Government took umbrage to the irregular and improper
manner
and timing of correspondence forwarded directly to the Ministers on
31 October 2009. They informed WW to inform their clients

accordingly. With regard to the terms of settlement, Freshfields
informed WW that those terms were unacceptable as the proposals
were
clearly not made in good faith. The proposals were accordingly
rejected.
[22]
Nthai
then informed Marcenaro that the Government would send to the
claimants a proposal of settlement of the arbitration proceedings.
He
advised Marcenaro that the claimants should reject the proposal. He
informed him furthermore that that would then lead to a
discussion
between the parties and that he would be there and
'1he
matter would be resolved"
He
concedes that at this stage his role was conflicted. By then
Marcenaro had him ensnared.
[23]
On
3 November 2009 Marcenaro called him. During their telephone
conversation he confirmed with Marcenaro that he had seen the
claimants
Request For Discontinuance. He confronted Marcenaro with
the relevant reference to
"senior
representative of the Respondent"
contained
in the Request For Discontinuance. Marcenaro confirmed that he had
not seen the Request For Discontinuance but reassured
him that he was
not the
"senior representative'
referred to in the Request For
Discontinuance. He then sought confirmation from Marcenaro that the
claimants' attorneys, including
Peter Leon of WW, were not aware that
Marcenaro had been engaged with him. He asked Marcenaro to confirm
that he did not disclose
to his legal representatives that he had had
discussions with him about the settlement and the payment of the R5
million. On the
same day Marcenaro confirmed to him that his clients
had rejected the offer to procure a favourable settlement of
arbitration proceedings
in consideration for payment of R5 million.
Marcenaro had, unknown to Nthai, secretly recorded their
conversations on 3 November
2009.
[24]
On
4 November 2009 WW replied to the letter from Freshfields. In their
reply they mentioned,
inter alia,
that the letter followed upon a
series of meetings and discussions between senior officials and the
senior representative of the
Respondent and the claimants. The letter
stated furthermore that the draft of the letter and a copy thereof
were sent separately
to another senior representative of the
Respondent with whom the proposals had previously been discussed.
[25]
On
the same date Nthai had a telephone discussion with Marcenaro. He
told Marcenaro that he had acted unethically when he engaged
with
him. He further told Marcenaro that:
''l
cannot from an ethical
point of view have ever discussed this thing with him."
He told Marcenaro that he had
engaged him on the basis that it would be between the two of them and
that the discussions would not
be disclosed by either of them. He
told him furthermore that
'their discussions had now become known
and he, Marcenaro, must now see to it that this thing (the matter)
dies here."
He further told Marcenaro that they would save
R50 million if they settled and did not have to pay the costs. He
told Marcenaro
that he would only assist the claimants to settle the
matter if the discussions they had were confidential and not
disclosed to
anyone.
[26]
Shortly
after 4 November 2009 Marcenaro visited Nthai at his home in
Bryanston. During the discussion that they had Nthai again
discussed
payment to him in consideration for facilitating the settlement of
the arbitration proceedings on the terms favourable
to the claimants.
Marcenaro gave him an impression that the arrangements were still on
track.
[27]
Nthai
admits that:
27.1
he
was wrong to inform Marcenaro that the Government had the proposals
for settlement and the claimants should reject them;
27.2
he
was wrong to tell Marcenaro that he should not inform any person,
including Peter Leon of WW, about their engagements;
27.3
he
had been dishonest to his clients by engaging in conduct that was
unethical;
27.4
he
accepts that his telephone conversations with Marcenaro and his
conduct constituted a serious transgression of ethical rules
and
showed dishonesty.
[28]
On
8 November 2009 Toby Landau QC, telephoned Georgios Petrochilos, a
senior solicitor at Freshfields. He told Freshfields that
Marcenaro
had face to face meetings and conversations with Nthai; that
Marcenaro and him had discussed the merits of the case and
defences
for the Government, the technical strategies, possible settlement and
possible reward if the case was settled in favour
of the claimants.
[29]
Nthai
admits that at all material times when he was engaged and held
meetings with Marcenaro he did so without the knowledge of
the State
Attorney, the claimants' lawyers and officials of the Government. He
admits that he was not only naive but was also completely
misguided
and dishonest.
[30]
Following
upon the complaints filed by Landau QC, on 22 January 2010, Ms AM
Mosidi, the Head of the State Attorney, in Pretoria,
complained about
Nthai's misconduct to the Pretoria and Johannesburg Bars with regards
to the conversations and meetings that Nthai
had had with Marcenaro.
[31]
Ms
Mosidi's Jetter:
31.1
informed
the two Bars that Nthai had committed gross misconduct and acted
inappropriately;
31.2
complained
that Nthai acted in a manner that breached his professional duties;
acted unethically and without instructions; that
Nthai breached the
advocate-client's privilege principle and compromised client's case
in the manner that sought to benefit Nthai's
own interests at the
expense of his client's interests; and
31.3
she
also reported to the Arbitration Tribunal. She requested the two Bars
to expeditiously investigate the conduct of Nthai.
These
allegations by Nthai have not been contradicted. It is therefore
inevitable for this Court to take a view that Nthai has again
made an
open and full disclosure.
[32]
MEDIA PUBLICITY AND THE EFFECT OF
SUCH PUBLICITY
32.1
In his founding affidavit Nthai has
outlined the devastating effect of the media publicity on him and his
family members. The negative
impact on his health was severe.
32.2
He
testified that from 26 January 2010 when the news of his
transgressions, in particular the issue of the bribe of R5 million
became publicly known, he was completely devastated. The news of his
transgressions became headline news in all television and radio

stations and newspapers.
32.3
Many journalists that he knew started
calling him and asking him for interviews in order to hear his side
of the story. He decided
to decline such interviews. As the calls
became intense, he and his legal team decided to use the services of
a seasoned journalist
to conduct his interviews. For that purpose
they employed a certain Abby Makoe. Quite clearly at the time he was
already found
guilty in the public opinion. Various negative articles
were written about his conduct and some of them are still available
online.
The story was highly publicised. There were also subsequent
news articles and commentators who had a field day. Comments about
his unethical conduct were posted online.
32.4
Some members of the public reacted with
shock and disbelieve and others were dismayed. He was ridiculed all
over and again by analysts.
His children were teased at school by
their fellow learners. However, the teachers tried by all means to
give them moral support.
The media publicity of his transgressions
was very embarrassing to him, his family, friends and colleagues and
all those who knew
him.
32.5
The media assault mounted against him
was intense and rather lengthy. He felt the isolation of his former
colleagues at the Pretoria
and Johannesburg Bars. Some colleagues he
worked with closely avoided talking to him. He was called a sell-out.
He wished the world
would forget him. He was emotionally drained to
the extent that he suspected that his improvement and eventual
healing would be
unlikely. The impact of publicity was enormous and
serious as a result his health was seriously affected. His health
deteriorated
further and reached a breaking point, it was for that
reason that during February 2010 he sought medical advice again from
Prof
Edward Woolf ("Prof Woolf') as he wanted to better
understand the reasons for his dishonesty and state of health.
32.6
Prof Woolf examined him and his finding
was that he was really depressed. On the recommendation of Dr Ingrid
Williamson ("Dr
Williamson"), he was admitted to Medi­
Clinic Sandton where he spent some days. Prof Woolf recommended he
should not watch
television, listen to the radio and read the
newspapers. While he was in hospital he was kept in a separate room.
People were not
allowed to visit him. He was treated in hospital by
Prof Woolf, the clinical psychologist, Dr Maxwell, the neurologist,
and Dr
Williamson, the psychiatrist. When he was discharged he
consulted with Dr Williamson and Prof Woolf for some time.
32.7
Before the date of the hearing in March
2010 approached, he consulted Prof Woolf, who advised him strongly
against his participation
in the Disciplinary Committee ("DC")
hearing. His recommendation was that he should forget the incident
and avoid any
proceedings that would re-ignite the episode in his
mind. He was prepared, though, to write a report and to submit it to
the DC.
32.8
He did not disclose to his legal
representatives the fact that he was admitted to hospital and that
Prof Woolf advised strongly
against his participation in the
Disciplinary Committee ("DC") proceedings. As he said, at a
later stage, after the DC
hearing he confided in Adv Dunn ("Mr
Dunn") who was a close friend. He also informed him that he was
still under treatment
by Prof Woolf. Mr Dunn expressed sympathy and
better understood his actions before the DC hearing.
32.9
The most important factor was that at
the time he could not meaningfully participate in the DC hearing as
he was so depressed. It
took him almost one hour to read one page of
the recordings. He was unable to meaningfully respond to the charges
as he would easily
forget the preceding paragraph he was reading.
There was no way he could meet the deadline, answer the allegations
or participate
in the DC hearing. At the time he was unwilling to
make any health condition public. His feelings could only be
understood by people
who had suffered depression. It is upon this
basis that patients of depression preferred to suffer silently which,
in some cases,
lead to suicides. The case of Dr Bongani Mayosi of the
Faculty of Health Sciences at the University of Cape Town, who
recently
committed suicide due to depression, came to Nthai's mind.
He actually agrees with many health experts who believe that the
illness
is very prevalent amongst black professionals. However, due
to the stigma attached to the illness they prefer to keep silent and

unfortunately some of them do not even seek professional assistance.
32.10
His approach towards the DC hearing and
subsequent proceedings must be understood in the context of his
health condition then. He
really accepts that he ought to have
disclosed his illness to his legal representatives and even at a very
late stage to the chairman
of the DC. He sincerely apologised for
having failed to do so. He is willing, even at the late stage, to
disclose the medical reports
to the chairman of the DC. This will be
accompanied by an apology.
DISCIPLINARY
PROCEEDINGS
[33]
During
the year 2010 the PSA received complaints about Nthai. According to
such complaints Nthai had acted unethically and in breach
of his
professional duties as an Advocate. These complaints were considered
by the PSA. Acting together the PSA and JSA appointed
a DC to
consider the complaints.
[34]
Nthai
was charged with, and found guilty of, the following misconducts that
he:
34.1
"corruptly, improperly and
dishonestly attempted to solicit a bribe of a sum of R5 million in
consideration for advising and
persuading his own client (the
Government of the Republic of South Africa) to, inter alia, pay its
own costs in Arbitration proceedings.
It is alleged that the total
costs of the Arbitration were approximately R50 million;
34.2
placed his own financial interest
above the interest of his client through the actual or potential
prejudice of his client;
34.3
established a relationship with a
representative of a party who was the claimant in the arbitration
proceedings against his client.
This compromised the legitimate
expectation of his client that his advice with respect to the conduct
of the Arbitration proceedings
would be honest and independent. The
client was entitled to assume that Nthai would act honourable and
honestly,·
34.4
entered into and engaged in
settlement discussions with the representative of the other party
(his client's opponent), without any
authority from his client to do
so and with the view to advancing his own personal interest rather
than the interest of his client,-
34.5
disclosed privileged and confidential
information to the other party to the proceedings to the actual or
potential prejudice of
his client. He advised his client to act to
its prejudice, furthering the interests of the other party above
those of his client,-
34.6
betrayed the confidence which his
client and his instructing attorney had in him to honestly,
objectively and independently advance
its interest in the Arbitration
proceedings.
"
[35]
At
the commencement of the disciplinary proceedings Nthai and his
counsel, namely Advocate Semenya SC, were present. Nthai asked
his
counsel for permission to address the DC. Permission was granted. He
formally told the DC that he was resigning from both the
Pretoria and
the Johannesburg Bars with immediate effect. The DC did not indicate
at the time whether or not it accepted Nthai's
resignation from the
PSA and JSA. He also promised to send a letter to confirm his
resignation from the PSA and the JSA to the
Bar Councils later that
day. He and his counsel then walked out of the proceedings despite an
invitation from the chairman of the
DC, Judge K van Dijkhorst, that
they could remain. They were warned though by the said chairman that
the proceedings would continue
in their absence.
[36]
On
6 April 2010 the DC issued a written report. In this report the DC
had firstly, recommended that Nthai's membership of both the
Pretoria
and Johannesburg Bars should be terminated and secondly, that steps
should be taken to remove his name from the roll of
advocates.
THE
LEGAL PROCEEDINGS
[37]
On
13 April 2010 the Pretoria Bar Council ("PBC") adopted the
recommendations of the DC. Quite obviously Nthai's letter
of
resignation from both Bars had not been accepted. The PBC, having
adopted the report or findings of the DC, took a resolution
that
Nthai was not a fit and proper person to practise as an advocate;
that his name should be removed from the roll of advocates
in terms
of the AAA and that Advocate NGO Maritz SC ("Mr Maritz"),
be mandated to bring an application to remove Nthai's
name from the
roll of advocates. Furthermore he was authorised to sign an affidavit
to give effect to the application to remove
Nthai from the roll.
[38]
For
that purpose of removing Nthai's name from the roll of advocates Mr
Maritz filed a founding affidavit. His affidavit was confirmed
by the
affidavits of Mr Ellis, Gerri! Grobbelaar, Julian Burger and a
certain Johnathan Veeraan of the law firm WW.
[39]
It
is of supreme importance to point out that alongside the founding
affidavit there was another affidavit by Adv Motimele SC in
which he
had submitted that the PBC had, in its possession, a set of documents
which
ex facie
reflected
that Nthai had been paid substantial amounts of money by Anglo
American Management Services (Pty) Ltd. Having considered
such
documents, council of the PSA concluded that Nthai was guilty of
overreaching. It requested the Court to look into that charge.
[40]
During
the stage in which the issue of overreaching was investigated, Nthai
had received a letter from the PBC in which he had been
requested to
disclose his books relating to the allegations of overreaching. His
legal representative responded to the said letter
whereafter the DC
did not pursue the matter any further. In the application to remove
Nthai from the roll of advocates, the PSA
pursued the allegations of
overreaching against him.
[41]
The
PSA does not challenge Nthai's evidence that the issue of
overreaching was part of the allegations it had made against Nthai
in
its application to remove his name from the roll and furthermore that
the decision that the Court made on 15 April 2013 took
into account
the aspect of overreaching. Accordingly overreaching by Nthai
constituted part and parcel of the reasons for the removal
of his
name from the roll. Notwithstanding, Nthai is gnawed by the pains of
compunctions for failing to co-operate with the PBC
in that regard.
He feels that he should have done so.
[42]
He
was served ultimately with a copy of the relevant application to
strike his name from the roll. In the said application the PSA
not
only prayed for an order in terms of which Nthai's name should be
struck from the roll but, over and above, asked, on the grounds
that
Nthai's conduct was gross and reprehensible, that Nthai should be
ordered to pay the costs of the application on a punitive
scale.
Although copies of the relevant application to remove Nthai's name
from the roll of advocates were not placed before the
Court, we do,
however, accept that the details of Nthai's unethical conduct were
fully outlined in the founding affidavit.
[43]
Nthai's
initial approach after being served with a copy of the application,
was to file a notice to oppose the application. The
purpose of filing
that notice, according to his testimony, was not so much to oppose
the application as it was to afford him an
opportunity to make
submissions. It is for that reason that upon his careful
consideration he deliberately refrained from delivering
any answering
affidavit. He had come to the realisation that he deserved to be
punished due to the serious nature of his indiscretions.
As a
consequence the application to remove him from the roll proceeded on
an unopposed basis. The Court, per Preller J, granted
the following
order on 15 April 2013:
43.1
"The
name of the Respondent, Seth Azwihangwisi Nthai, is struck from the
Roll of Advocates;
43.2
the Respondent is ordered to
forthwith hand in his Letters Patent as Senior Advocate to the
Registrar of the Court;
43.3
the Respondent is ordered to pay the
costs of the application on the scale as between attorney and client.
"
[44]
Nthai
contends that he has complied with the court order inasmuch as he has
paid the entire costs of the application. This is not
in dispute. It
is also not in dispute that by way of a token Nthai has returned the
Letters Patent. We deliberately used the word
"token"
because in his founding affidavit Nthai states that due to the
urgency of the court order, he submitted a true
copy of the Letters
Patent as he was unable to locate the original Letters Patent as he
had closed both his Pretoria and Johannesburg
chambers and had, over
and above, moved house. He stated furthermore that despite diligent
search he has been unable to locate
the original Letters Patent. The
Respondents have not made any issue about this point.
THE
CONSEQUENCES OF BEING STRUCK FROM THE ROLL
[45]
Ever
since his name was removed from the roll Nthai has never practised.
He states that the removal of his name from the roll of
advocates had
very serious aftermaths for him personally, his family and all those
members of his extended family who relied on
him for support. In
January 2010 he found himself without any income. Consequently he was
all of a sudden in no position to comply
with his financial
obligations.       He:
45.1
sold the Porsche motor vehicle in Cape
Town. From part of the proceeds of such sale he could settle the
outstanding amount. He remained
with a balance of R100,000.00;
45.2
was a collector of fine watches. He sold
five of some of his precious watches to Peter Machlup at Fine Watches
and Diamonds. The
proceeds of these watches he sold sustained him for
a period. The amount that he got from the sale of the fine watches
was just
a fraction of their value;
45.3
sold his immovable properties in Cape
Town and Hartebeespoort. The proceeds of the sale of such properties
were sufficient to enable
him to settle some of his outstanding
debts;
45.4
had to cancel his medical aid in early
2012 and at the time he did so his wife was not well. He had to
cancel the medical aid because
his wife's medication was too
expensive. It was impacting negatively on his limited financial
resources;
45.5
following his financial difficulties
after his name had been removed from the roll, Nthai wished that the
meetings and the conversations
that he had had with Mr Marcenaro had
not taken place. He was remorseful. He regretted that such meetings
and conversations ever
took place. He thought about his unethical
conduct every single day and realised that because of his sheer greed
and dishonesty
he had destroyed his profession. He had become
impecunious.
[46]
The
PSA understood that because of lack of any regular source of income,
Nthai would suffer financial hardship. The PSA however
submits that
Nthai should have taken the Court into his confidence by submitting
his financial statements for the period 2010 and
for the current
position. It is important to point out that such statements were
presented to Court on the date this matter was
heard and that no
reference was ever made to them.
[47]
Nthai
continued with his evidence and testified that the motivating factors
of those character defects which led to the removal
of his name from
the roll of advocates were:
47.1
dishonesty;
47.2
greed;
47.3
poor
judgment; and
47.4
health
condition.
He testified furthermore that he
accepted the findings of the DC.
[48]
FINDING ONE: SOLICITATION OF R5
MILLION PAYMENT
48.1
Nthai
realises and accepts that he was driven by dishonesty, greed and poor
judgment.
48.2
He
accepts that he was not honest to his client and the claimants.
48.3
On
10 October 2009 he met with Marcenaro at the offices of Mariano in
Johannesburg. During this meeting Nthai proposed to Marcenaro
the
terms of the settlement of the arbitration proceedings and demanded
payment of RS million into his foreign bank account, in
return he
agreed to influence his client to accept the terms of withdrawal.
48.4
Nthai
admits that he was wrong to give Marcenaro the proposal for
settlement. In his subsequent meetings and conversations with

Marcenaro, so he continued with his testimony, he continued to
impress on Marcenaro to persuade the claimants to make payment in
the
sum of R5 million to him. He admits that his conduct was improper,
dishonest and unethical.
48.5
He
concedes that in the circumstances of his transgressions his conduct
justified the removal of his name from the roll. He admits
it. It is
accordingly unsurprising that the DC recommended the removal of his
name from the roll and that the Court duly removed
his name from the
roll.
48.6
Nthai admits furthermore that he failed
to act with integrity and professionalism expected of a practising
advocate; that his constant
and continual conduct to pursue Marcenaro
to procure payment of R5 million to him in order to assist the
claimant to settle in
terms favourable to them was a
very
severe breach of his professional
duty and failure on his part to discharge his duty with honesty.
48.7
He acknowledges that he placed his own
greed and personal interests before the demands and requirements of
his profession. He states
furthermore that 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. He
admits that he brought the good name of the legal profession into
disrepute.
48.8
The PSA describes his statement that
''in
the first place I was wrong to
give Marcenaro the proposal for settlement"
as
a euphemistic description of his misconduct. They contend that such a
description is indicative of lack of appreciation of his
action at
the time. On the strength of such contention Mr Ellis submits that
Nthai did not exhibit an understanding of where he
went wrong, apart
from the fact that the solicitation of a bribe is an act of
corruption and that an advocate should under no circumstances
even be
in contact with an opponent's client.
48.9
It is of paramount importance though to
point out that to all the allegations, admissions and concessions
made by Nthai, the PSA
did not complain that Nthai's rendition of his
solicitation of the payment to himself of the sum of R5 million was
incomplete,
untrue nor that it did not take place in the manner in
which he described it.
48.10
In the absence of any complaint or
response that Nthai's rendition of facts vary from the contents of
the transcripts which the
PSA has read, we must therefore conclude
that Nthai has made full and frank disclosure with regards to the
solicitation of the
R5 million payment. Nthai accepts responsibility
for his actions. In the first place his testimony is not exculpatory.
He does
not disregard the facts. The facts that he presented have not
been controverted. He does not blame others for his deviant ways.
He
does not find excuses for his own delinquent conduct. He accepts that
he has all himself to blame for falling foul of the profession
and
his downfall. He fully understands the gravity of his misconduct. He
accepts that he had to be punished by the removal of his
name from
the roll. This is a quintessential example of his acceptance of the
seriousness of his misconduct.
48.11
The LPC does not dispute that he made a
full and frank disclosure.
48.12
Secondly, he states that the underlying
motivating factors of those character defects that led to the removal
of his name from the
roll were dishonesty, greed, poor judgments and
health conditions. This, in our view, is in keeping with what the
Court stated
in Swartzberg in paragraph [22]
''lt is thus crucial for a
Court confronted with an application of this kind to determine what
the particular defect character or
attitude was.
More
importantly it is for the appellant to first properly and correctly
identify the defect of character or attitudes involved
and thereafter
to act in accordance with that appreciation.
For until, unless there is such a cognitive appreciation on the part
of the applicant, it is difficult to see how the defect can
be cured
or corrected. It seems to me that any true and lasting reformation of
necessity depends upon such appreciation."
(Our
own underlining).
48.13
This means that the Court must know
precisely what the cause of a misconduct was; that Nthai is the
correct and relevant person
better placed to know what led him to
commit the misconduct. We are satisfied that Nthai has ably
identified the precise defect
of character or attitude involved that
led him to commit his errant ways and that eventually led to his
ruination.
48.14
On the other hand the LPC admits this
allegation by Nthai and accepts it.
[49]
FINDING TWO: OWN PERSONAL
FINANCIAL INTEREST
49.1
This defect character of attitude is
similar to greed. In his testimony Nthai takes full responsibility
that during these meetings
and telephone conversations with Marcenaro
he tried with all his might to persuade him to convince the
complainants to agree to
his offer of R5 million and his terms of
settlement;
49.2
he accepts that his conduct was
completely wrong and improper, more so in the light of the fact that
he had no authority or instructions
from his clients or the State
Attorney to engage in any settlement negotiations on any of the
issues in the arbitration proceedings;
49.3
he continues to testify that the fact of
the matter was that his conduct at the time was motivated by serious
defect of character.
In conclusion on this aspect he accepts and
recognises that his conduct was unacceptable and deceitful;
49.4
the PSA acknowledges the fact that Nthai
recognised that his conduct was unacceptable and deceitful. Mr Ellis
though submits that
words are incapable of describing this dastardly
deed by Nthai. He accepts Nthai's words;
49.5
the LPC admits the allegations made by
Nthai but maintains that
"on a
conspectus of all the facts"
Nthai
is not a fit and proper person to practise as an advocate. The LPC
fails to set out any facts on the basis of which it takes
the point
that Nthai is not a fit and proper person to practise as an advocate.
It was imperative for the LPC to do so as to enable
Nthai to meet the
LPC's case and secondly, to place the Court in a better position to
make an informed decision. The Court can
only make a decision that
Nthai is not a fit and proper person to practise as an advocate on
the facts placed before it.
[50]
FINDING
THREE: RELATIONSHIP WITH MARCENARO AND COMPROMISING THE CLIENT'S CASE
50.1
Nthai fully acknowledges that his
relationship and conversations with Marcenaro compromised his
client's case. He accepts that he
should not have discussed the
matter with Marcenaro. Due to his greed and uncontrollable desire for
personal financial gain he
admits that he embarked on a part which
was prejudicial to his client's case.
50.2
He acknowledges that he was not
authorised by his client to discuss the matter with Marcenaro, yet he
did. He also acknowledges
that that conduct of his strayed from the
fundamental principle of integrity, honesty and reliability.
50.3
Furthermore he admits that he was wrong
to advise Marcenaro that there were two factions in the Government
whose approaches to the
settlement were different. That information,
so he admits, compromised the position of the Government when it came
to settlement.
Nthai takes full responsibility that he was not only
wrong but acted unethically when he informed Marcenaro that he would
use his
influence to promote the settlement he had proposed. All that
he did was motivated by a high sense of deception and greed.
50.4
The PSA takes notice of these
allegations and in particular of the fact that Nthai recognises that
his conduct was unacceptable
and deceitful. The LPC, on the other
hand, admits these allegations.
[51]
FINDING FOUR: SETTLEMENT
DISCUSSIONS WITH MARCENARO
51.1
Nthai
accepts that it was for him completely dishonest to discuss and give
Marcenaro the proposal for settlement of the arbitration
proceedings,
in particular, without having been so authorised by his clients and
opposing attorneys. His conduct was, according
to his admission,
unscrupulous.
51.2
He acknowledges that all he wanted was
to pursue his personal interests at the expense of the mandate he had
been given.
51.3
Nthai accepts that what he did was
extremely and profoundly dishonest. Accordingly he accepts the
findings of the DC in relationship
to his settlement discussions with
Marcenaro.
[52]
FINDING FIVE: NTHAl'S CONFIDENTIAL
INFORMATION
52.1
Nthai admits that he failed to preserve
his client's confidential information.
52.2
On 4 November 2009 Nthai disclosed to
Marcenaro that the Government would settle and that the claimants
should reject the Government's
terms of settlement. He accepts
unreservedly that it was unethical and unprofessional for him to
inform Mr Marcenaro that the Government
would settle and that if they
did so the claimants should reject the proposals. He admits that it
was wrong for him to do so; that
it was unbecoming for him to
communicate directly with a representative of the claimants who were
the opponents of his clients.
52.3
He accepts the DC's finding. He accepts
that the DC was correct in finding him guilty of disclosing the
confidential information
of his client to Marcenaro. He was only
motivated by his personal financial interest.
[53]
FINDING SIX: BETRAYAL OF CLIENT'S
CONFIDENCE
53.1
Nthai admits that he betrayed the
confidence and trust placed upon him by his client. He failed
dismally to advance the interests
of his client in the International
Arbitration Tribunal. He did this by giving Marcenaro the proposal
for settlement and later
informing him that the Government was
planning to settle the disputes and that Marcenaro and his team
should reject the Government's
terms to settle.
53.2
He acknowledges that he came to realise
that he betrayed the trust placed upon him basically because of his
greed. His conduct was
a quintessential example of disgraceful greed
coupled with dishonesty.
53.3
It is for these reasons that he admits
that the DC was spot-on in finding him guilty in disclosing the
confidential information
of his clients to Marcenaro.
53.4
In the aforegoing paragraphs we have
come to the conclusion that Nthai demonstrates his realisation that
he came to terms with the
fact that his acts of dishonesty
convincingly demonstrate a material defect of character. He
recognises that his conduct was reprehensible
and unbecoming. His
evidence is not exculpatory and does not disregard the facts. He
understands the gravity and the wrongfulness
of his misconduct.
53.5
Once again the PSA remarks that once
again words fail to describe the audacious act of corruption
committed by Nthai. They accept
his words.
53.6
The JSA contends that Nthai has not
taken this Court into his confidence inasmuch as he has failed to
explain who paid for his travel,
meals and entertainment and other
expenses, if any, when he travelled to Italy to meet with Marcenaro.
53.7
Nthai's evidence is clear that Marcenaro
paid only the dinner at the restaurant and for the petrol to the
airport. He paid personally
for all the other expenses. He gave the
reason that if Marcenaro had paid for his accommodation, it would
have been unnecessary
for him to tell Marcenaro that the hotel to
which he had referred him was closed. The implication is that
Marcenaro would have
himself found out. Nthai testified that this
fact is as clear as crystal from the discussions between him and
Marcenaro.
[54]
NATURE AND DEGREE OF CONDUCT
54.1
Based on the serious nature of his
transgressions, Nthai appreciates the fact that the PBC was correct
to appoint the DC to investigate
his conduct. He appreciates
furthermore the fact that at that material time the PBC was the
custodian of the Professional Code
of Good Conduct and for that
reason had a duty to approach the Court.
54.2
There is no doubt that his
transgressions were very serious. Firstly, his regular conversations
with Marcenaro involved dishonesty,
greed and deception. Nthai
provided Marcenaro with a proposal for settlement with the sole
intention to gain financially from such
proposals; just with one eye
fixed on soliciting payment to him of a bribe in the sum of R5
million so that he could unduly influence
his client to settle the
matter on the terms favourable to his client's opponents. Nthai
accepts that this transgression was extremely
grave and that its
gravity merited his removal from the roll of advocates.
54.3
Secondly, his unwarranted engagements
with Marcenaro constituted a serious betrayal and trust placed upon
him by the Government
of the Republic of South Africa and its people.
54.4
Thirdly,
his indefensible direct intervention with Marcenaro compromised his
client's case and undermined his professional relationship
with those
colleagues who represented his clients and those on the other side.
There is authority that states that:
"The nature and degree of
misconduct is a relevant factor when the Court considers an
application to be restored to the roll.
As was pointed out by Van
Winsen in the above quoted passage from his judgment in Kudo's case
supra, among matters to which the
Court will have regard in an
application for re-admission are the nature and degree of the conduct
that occasioned the applicant's
removal from the
roll
and the explanation given by the applicant for such conduct
,
which might mitigate or even perhaps aggravate the heinousness of his
offence."
See
Behrman, p 558G. (Our own underlining).
54.5
In Nthai's own words:
"In light of the
seriousness of my acts of misconduct, I admit, a lesser sanction by
the DC would not have been appropriate.
I, therefore, appreciate that
the application for striking off was justified I genuinely believe
that all that I have done and
communicated to Marcenaro was wrong and
my conduct was manifestly unprincipled and improper."
These words speak for themselves.
Nthai accepts the responsibility for his conduct, without even trying
to find a scapegoat or excuses
for his own behaviour.
54.6
While the PSA takes note of the
admission by Nthai that his conduct was manifestly wrong and
improper, it contends that Nthai has
done nothing more to make amends
for the wrong that he has done, such as disgorging the ill-gotten
gains. The PSA, quite obviously,
cannot challenge Nthai's allegation
that he has taken full responsibility for his conduct. This point is
demonstrated by its submission:
"That a ritual recantation
of the acceptance that the applicant was wrong does not assist him in
this case.
"
54.7
On the other hand, the LPG has admitted
the allegations made by Nthai. It is clear that even if Nthai could
state a million times
that he takes full responsibility for his
actions, the PSA and JSA will always regard such a statement as a
mere platitude. Both
the PSA and JSA, in our considered view, seek to
portray Nthai as someone who has not appreciated the seriousness of
his indiscretions.
That picture is not covered by, and does not
enjoy, the support of the evidence Nthai has tendered.
One of the factors that this Court takes into
consideration in re-admitting a person whose name was previously
removed from the
roll is that person's appreciation of the
seriousness of his misconducts. Appreciation of seriousness of one's
misconducts has
the potential that such a person will not repeat the
same mistakes.
[55]
EMPLOYMENT AFTER HIS NAME WAS
REMOVED FROM THE ROLL OF ADVOCATES
In his endeavours to earn income subsequent to
his name being removed from the roll he was employed at the following
places:
55.1
In February 2012 he was employed by a
certain Kovilan Sigamoney, the CEO of Sizonke Civils and Engineering
("Sizonke"),
as a compliance officer at the salary of
R30,000.00 per month which, according to him, was not enough to cover
all the basic living
expenses and medical costs. This company was
involved in two projects at the time, firstly, in the construction
works as a subcontractor
to TBP civils which had been appointed to
build a primary school at Loftus Gardens near Atteridgeville and an
aircraft hangar for
the Red Cross in Bloemfontein;
55.1.1   in the
aforementioned capacity his duties included supervising all the
workers, labour issues, ordering materials
and ensuring that the
company was compliant in terms of tax matters, statutory and
regulatory matters, conducting due diligence
on potential customers
and subscriptions, site instructions, taking and keeping minutes and
marketing and other tasks given to
him by the CEO.
55.2
All the workers reported directly to
him.
55.3
The employment at Sizonke opened another
chapter in his life. He quickly had to learn all the construction
related issues. The construction
of the hangar was completed in
December 2012. The sub-construction work at Loftus Gardens was
terminated in October 2012. During
the same month TBP was placed
under business rescue. Later it applied for liquidation.
55.4
As Nthai had, during his practice gained
a good understanding of the liquidation industry when he chaired the
Committee of Enquiry
into the liquidation industry, he was elected as
the Chairperson of the Committee of Creditors. This committee played
a significant
role in the appointment of liquidators and ensured that
those creditors spoke with one voice.
55.5
During March 2013 Mr Sigamoney decided
to close the offices of Sizonke as he went to join his wife and
children in the USA on a
permanent basis. After the relocation of
Sigamoney, Nthai was left without employment.
55.6
The supporting affidavit of Sigamoney
shows that Nthai was given huge responsibilities which included
dealing with funds. Sigamoney
tendered evidence to the effect that he
found the applicant to be pleasant and honest and reliable. In his
affidavit attached to
the founding affidavit as annexure 'FA24' the
said Mr Sigamoney testified, among others, that:
"19    As
my family was in the United States of America I would at times leave
for a period of a month
and feel comfortable that both projects were
in good hands. In my absence Nthai was responsible for all the
business activities
including the finances of the companies.
20
In
the end, I abdicated all my responsibilities and Nthai was in full
control of the affairs of the companies. I found Nthai to
be honest,
reliable and a man of integrity Whatever happened that Jed to his
transgressions was out of his character. I may also
point out that
during Nthai's employment there was fierce resistance from the
professionals that I had engaged. They felt that
the publicity around
his case would negatively impact on the business. I however dismissed
their concerns as I had already seen
Nthai's abilities.
21
Nthai
has finally accepted his wrongdoings and I am convinced that if given
a second chance, he would never repeat these transgressions.
I
honestly believe that Nthai still has an important role to play in
the legal profession and the society in general.
"
It
is these qualities that Mr Sigamoney has mentioned in his affidavit
that the Court considered as crucial and accepted in W v
Incorporated
Law Society, Transvaal, 1953(4) SA 187 (T) at 191 A-H, see also
Kaplan at p. 776 D-H.
55.7
We are impelled to conclude that Nthai
has demonstrated absolute personal integrity and scrupulous honesty
in his subsequent employment
and interaction with others. The fact
that Nthai was entrusted with handling monies on behalf of the
company without supervision
means that his conduct was commensurate
with a large degree of trust. This is one of the most crucial traits
that the Court takes
into account in considering an application for
re-admission. It resonates with paragraph [30] of
Swartzberg
where the Court had the following to
say:
"Where the professional
misconduct consists, as here, of theft, one would imagine that it
would be relatively easy to establish
that the person has undergone
complete and permanent reformation.
That
could be done by placing evidence before a Court that the individual
concerned has for some length of time handled money without

supervision and has proved his honesty
."
(Our own
underlining).
According to Sigamoney, Nthai, as
an employee, demonstrated scrupulous honesty, integrity and
competency. He opines that Nthai has
completely reformed; that he has
learned from his own mistakes and that he is now better equipped to
practise as an advocate; and
he regards him as a fit and proper
person to be entrusted with the duties and responsibilities of an
advocate. See also Kekana
v Society of Advocates of South Africa
1998(4) SA 649 (SCA); Hayes v The Bar Council 1981(3) SA 1070(A),
1081 - 1082D; Swain v
Society of Advocates, Natal, 1973(4) SA 784A
and Ex Parle Ngwenya: In RE Ngwenya v Society of Advocates 2006(2) SA
88W. Nthai did
not relapse into dishonesty during the period in which
he was responsible for the management and control of Sizonke's
finances
notwithstanding that he exercised such control and
management unsupervised.
[56]
NTHAl'S BUSINESS VENTURES
56.1
In
2010 Nthai floated a mining consultancy company called Phillipus
Consulting Services (Pty) Ltd ("Pies Consulting").
56.2
During
January 2011 he was introduced to some South Korean investors who had
shown interest in green technology such as LED lights.
By an
agreement between him and such investors, his own company, PIGS
Consulting, would be used as a vehicle to market the LED
lights on a
commission basis. He embarked on the task of introducing the LED
lights to the mining industries and municipalities.
Later he and his
South Korean investors decided to float a company called Sakor Energy
Saving Servies (Pty) Ltd ("Sakor").
Here he was assigned
the position of the President of the company. He assumed the overall
role of supervision and control of the
finances of the company. The
other directors resolved that he be the sole signatory and
administrator of the company's bank account
at First National Bank.
The finances of the company came from the investments by the South
Korean Partners. He invested the money
and withdrew it when it was
required. Firstly, this evidence shows that Nthai occupied a position
of trust and secondly, that during
the period he was conducting with
the affairs of the companies he did not relapse.
56.3
In order to understand the market of LED
lights, Nthai had to conduct research. He edited the proposals
prepared by the technicians
and engineers for proper marketing.+
56.4
PIGS Consulting also entered into an
exclusive marketing agreement with Greenhouse Strategies, a company
which was based in the
United States of America, in September 2011.
PIGS Consulting was granted the exclusive rights to market the green
technology products
manufactured by Greenhouse Strategies on
commission basis. This was to Nthai another opportunity to conduct
further research and
to understand better the Green Technology
Innovations.
56.5
The company began to flounder after the
information about Nthai being struck from the roll was discovered on
Google. This took place
during October 2011 when the Korean partners
and the CEO of Hala Construction, a company with which the South
Korean partners had
negotiated a joint venture agreement, visited
South Africa to explore business opportunities. The CEO of Hala
Construction used
Google Search Engine, found Nthai's name and read
about the DC's report and his ethical transgressions. The following
morning the
CEO informed his Korean partners that Hala Construction,
as a listed company, could not be seen to be associating with Nthai.
His
Korean partners tried their level best to indicate that he has
disclosed his transgressions to them and were happy that he showed

remorse and learned from his conduct. When he was informed about the
decision, Nthai's feelings were stirred all over again. Hala

Construction slowly pulled out of the joint venture. From that point
it was extremely difficult for Nthai and Sakor to do any business

with other companies. The publicity of his transgressions was all
over
and
it did not stop,
even
after
the removal of his name from the roll of advocates.
56.6
During April 2013, Nthai worked on a
part time basis at X-Corp, where he was employed by a certain
director, Nicols Naidoo, to market
X-Corp's products. At a later
stage the said Naidoo advanced a financial loan to Nthai.
56.7
He continued developing PIGS Consulting.
56.8
Nthai's evidence on his employment and
business activities has not been challenged by any one of the
respondents, with Mr Ellis
stating that he has no knowledge of the
contents of what Nthai has stated. Mr Ellis though listed a number of
other companies and
Close Corporations in which Nthai had interest
but which he, Nthai, had not disclosed in his founding affidavit. In
his replying
affidavit Nthai conceded that he did not mention all of
such companies and Close Corporations and furnished reasons why he
did
not do so. These companies were not active. He derived no income
from them.
56.9
Against all odds Nthai managed quite
clearly to employ his talent and skills to a significant contribution
to the economy of the
country. This is a demonstration that if he is
given a second chance he will continue to make contributions to the
legal profession.
This is a relevant factor that the Court is
prepared to take into consideration. This Court finds support for
this
view
in
Kudo
v
Cape
Law Society 1972(4)
342 CPD, 345G-
346A ("Kudo 1972") in
which the Court stated as follows:
''ln
considering
whether this onus has been discharged the Court will have regard to
the nature and degree of the conduct which occasioned
the applicant's
removal from the roll, the explanation, if any, afforded by him for
such conduct which might, inter alia, mitigate
or perhaps even
aggravate the heinousness of his defence, to his actions in regard to
an enquiry into his conduct and proceedings
consequent thereon
to
secure
his removal, to the lapse of time between his removal and his
application for restatement,
to
his activities subsequent to his removal,
to
the expression of contrition by him and its genuiness, and to his
efforts to repairing the harm which his conduct may have occasioned

to others. These considerations are not necessarily intended to be
exhaustive and the weight to be attached to them must naturally
vary
with the circumstances of the case. They all, however, relate to the
assessment of the applicant's character reformation and
the chances
of his successful conformation in the future to the exacting demands
of the profession he seeks to re-enter.
"
56.10
On the other hand the LPG does not
challenge the allegations made by Nthai with respect to his
employment and business activities
subsequent to the removal of his
name from the roll. The LPG states that they have noted such
allegations and goes further to emphasise
the fact that Nthai is not
a fit and proper person to practise as an advocate of the High Court
of South Africa.
[57]
VOLUNTARY LEGAL WORK AS PART OF
COMMUNITY SERVICE
57.1
In November 2012 a certain Thivhulawi
Norman Makumbane ("Makumbane"), the senior traditional
leader of Tshisahulu Village
in Venda, contacted the applicant and
requested him to assist the local Legal Aid Centre in Thohoyandou.
Makumbane had informed
Nthai that a certain villager whom he knew had
been sentenced to life imprisonment for murder. Nthai agreed to
assist on a pro-bona
basis. Nthai discussed that issue with Sigamoney
who agreed that he should be involved in the matter as part of his
rehabilitation.
57.2
Nthai worked with attorney James
Mangwadu of the Thohoyandou Justice Centre and together they lodged
an application for leave to
appeal to the President of the Supreme
Court of Appeal. Leave to appeal was granted and Nthai assisted in
the preparations of the
heads of argument and Aide Memoir. The SCA
heard the appeal on 10 September 2014 and delivered the judgment on
18 September 2014.
The SCA dismissed the appeal on conviction but
upheld the appeal against sentence. The sentence was consequently
reduced to 20
years' imprisonment. This judgment is cited as
Makumbane v State [2014] ZSCA 116.
57.3
When the application to the SCA was
prepared Alfred Magadane ("Magadane") was represented by a
private attorney. He terminated
the mandate of that attorney and
appointed Thohoyandou Justice Centre. Nthai had prepared another
application for leave to appeal
to the President of the SCA. Leave to
appeal to the Full Court in the Limpopo Division in Polokwane was
granted. The judgment was
delivered in 2016. The sentence of Magadane
was reduced to 20 years' imprisonment. Since 2017 Nthai has been
assisting Magadane
to apply for early parole based on his advanced
age.
57.4
This invaluable community work which
took him over 6 years is, in our view, a relevant factor to be
considered in Nthai application.
See in this regard Ex Parle Pillay
and Others paragraph [25]. In the said paragraph the Full Court
regarded Community Service as
a crucial factor in an application for
re-admission. There is undoubtedly some independent evidence of
reformation. Since his name
was removed from the roll of advocates
Nthai has made a very sincere and determined effort to live with
honesty, integrity and
dignity. His life in the years he was not in
practice had been very difficult and trying years for him. He had
dedicated these
years to try to rehabilitate himself. According to
Sigamoney, Prof Woolf and Dr Williamson, Nthai has completely
rehabilitated
himself and his reformation is permanent. According to
Prof Woolf Nthai showed tremendous remorse, guilt and contrition.
Sigamoney
considered Nthai as a person who will not repeat any acts
which caused his downfall. James Mangwadu had this to say about the
assistance
from Nthai:
''l
do not conceal my happiness
and really appreciate (your great assistance). I can handle any
matter from now onwards. May God bless
you."
57.5
The
evidence regarding the voluntary legal work that Nthai has rendered
has not been disputed either by the PSA or the JSA in their
answering
affidavits. However, the JSA initially adopted the stance that the
voluntary work ought to have been done under supervision.
This
appears correctly to have been abandoned in the answering affidavit.
In any event Nthai submits that there is no merit in
the submission.
Voluntary work was done on a pro-bona basis. We conclude that Nthai
is therefore a fit and proper person to be
re-admitted as an
advocate.
[58]
PATH TO REFORMATION AND
REHABILITATION
58.1
After he had undertaken not to practise
and after the removal of his name from the roll, Nthai used the time
to re-discover the
anchors of his existence and undertook deep
self-introspection and soul searching. He came to realise that the
lapse of moral judgment
was a defect of character and needed to
reform which would require constant introspection, self-criticism and
working hard towards
reformation. Having read the findings of the DC
many times he was determined to learn from his own mistakes and
transgressions.
58.2
While he was working at Sizonke, he
discussed with Sigamoney openly and frankly about his transgressions
and feelings of guilt.
During April 2012 Sigamoney suggested that
Nthai should see Pastor Nelson Abraham ("Pastor Abraham")
of the Baptist Union
of South Africa Church for spiritual guidance.
Pastor Abraham assisted him to learn to accept his guilt and make
amends.
58.3
His interaction with Pastor Abraham was
in April 2012. The first session that he had with him was to give him
an opportunity to
explain his transgressions and deep feelings of
guilt. Pastor Abraham counselled and consoled him that God still
loved him and
that what happened should be accepted as God's way of
showing him the right path. He further indicated that Nthai should
never
doubt his abilities. This gave 'him strength and he started to
see some light at the end of the tunnel. They prayed together.
58.4
Nthai had many sessions with Pastor
Abraham and Pastor Abraham became the pillar of his strength. He
always encouraged him to review
himself in a positive light and used
the time to reflect deeply. The intervention of Pastor Abraham made
Nthai to have a deep introspection
of his actions and that made him
to admit that he would never repeat his disgraceful actions. The
affidavit of Pastor Abraham is
attached to the founding affidavit as
annexure 'FA35'. In the said affidavit the said Pastor states as
follows:
"14.  It is important
to mention that during the counselling sessions, Nthai always wished
that he (sic) would want to
be re-admitted as an advocate and
continued (sic) to contribute to the profession that is so dear to
his heart. During the sessions,
he would express and show remorse of
what he had done. My task was to encourage and impress upon him that
God would restore heaven
to him, including his position as advocate.
15.
I
can point out without any fear of contradiction that Nthai has shown
remorse and had time to reflect on his defect of character
and
appreciated the seriousness of his transgressions.
16.
I
believe that he has reformed and would not repeat the transgressions
which brought him down and shame. I am convinced that Nthai
has still
a lot to offer to the country, if given a second chance. Nthai is a
talented man whose contribution to society is immense.
17.
I
do not hesitate to support his application for re-admission and wish
him success."
58.5
The PSA, JSA and the LPG have not
disputed the evidence of Pastor Abrahams. However they argued,
without any factual basis, that
Nthai has not shown a genuine reform.
Their evidence in this regard does not enjoy the support of any
objective facts. It is important
to point out that the supporting
affidavits of Sigamoney and Pastor Abraham were formulated after a
long period of observation
and counselling. See in this regard Kudo
1972 at 346G-H where the Court states that:
"The applicant says that
he is a reformed character and that he is genuinely contrived for
what he has done. Compunctions for
past mistakes, if honest,
undoubtedly affords a measure of insurance against repetition of the
same or similar conducts. I am satisfied
that applicant's remorse for
his misconducts is genuine. I have no reason to doubt the evidence of
the deponents who speak to this
and, indeed, I do not understand the
Society to controvert such evidence.
...
"
[59]
TREATEMENT BY MEDICAL
PRACTITIONERS
59.1
In his evidence, Nthai deemed it of
supreme importance to disclose his health condition at the material
time the misconducts took
place. It will be recalled that in his
founding affidavit, Nthai identified his health condition as one of
the four primary motivating
factors of character defects that led to
his name being removed from the roll of advocates. On the basis of
that it is easy for
one to conclude that Nthai's health condition
played significantly a role in his deviant and irrational behaviour.
That condition,
it is so explained, had a long history.
59.2
With the sole purpose to fulfil the
requirement of full and frank disclosure, Nthai took this Court into
his confidence and disclosed
his health condition. He testified that
his health condition is an extremely sensitive and personal matter
which has been difficult
for him and which he has reluctantly
disclosed to other people. It was a condition known only by his late
wife. He has now gained
the courage to disclose it.
59.3
In his founding affidavit, Nthai set out
his long battle with Depression and Anxiety. On this aspect, Nthai
relies on medical reports
compiled by distinguished medical
practitioners, such as Dr Williamson, a psychiatrist, and Prof Woolf,
a clinical psychologist.
There is therefore powerful evidence in
support of Nthai's case. It is therefore unsurprising that Nthai
relies heavily on the
reports of the said distinguished experts to
demonstrate the significant role that his hidden health condition has
played in his
misconduct.
59.4
It is crucial to point out that in his
report, Prof Woolf pointed out that he had advised Nthai against
appearing before the DC.
His report states,
inter
alia,
that:
"Although Mr Seth
Azwihangwisi Nthai improved during the hospital stay and outpatient
follow-up, he still remained severely
depressed Mr Seth Azwihangwisi
Nthai indicated in February 2010 that he had to appear before a
disciplinary hearing regarding his
professional misconduct. Based on
his symptoms and psychometric results, the undersigned cautioned Mr
Seth Azwihangwise Nthai strongly
against appearing at the hearing as
he could not represent himself accurately or at all. Mr Seth
Azwihangwisi Nthai indicated that
he would follow the advice. I also
advised him that any participation in any subsequent proceedings
should only be done after I
had examined and assessed him.
"
59.5
Nthai
continued to receive treatment from Prof Woolf. Seemingly, at the
material time of the transgressions in October/November
2009, Nthai
was still under treatment and had not fully recovered. At the same
time he was still under medication by Dr Graeme
Maxwell. This was
supported by Dr Williamson who in her report observed that Nthai's
erratic and irrational behaviour was, at the
material time, difficult
to explain.
59.6
It was only when his transgressions
became known that Nthai appeared to have become aware of, and
appreciated, the consequences
of his actions. Otherwise how does one
explain the fact that he risked his lucrative practice, the
opprobrium of his colleagues
and friends and the society at large and
his entire career in which he would have practised his advocacy until
his retirement for
a mere R5 million which amount, it must be pointed
out, was not even paid to him? One can hardly find any rational basis
for his
conduct. After all he had a prosperous and successful
practice and, besides, held responsible positions.
59.7
Nthai contends that due weight should be
given to the opinion of Dr Williamson in which she stated that:
"Mr Nthai reported a
longstanding history of intermittent depression and anxiety dating
back in 1995 for which he received
treatment over years. My first
contact with Mr Nthai was in February 2010 and at that stage he was
clearly depressed Given his
history of intermittent episodes of
depression and the Major Depressive Disorder that I observed in
February 2010, I am of the
view that this could have influenced his
behaviour during the preceding months including September, October,
November and December
2009. His severe condition in February 2010
could not have developed over a few short weeks. When I assessed Mr
Nthai in February
2010, he was unable to give me a rational
explanation of his decisions and behaviour in those months in 2009
that led to his disbarment.
Depression can impair a
person's cognitive functions and would in that event have a negative
impact on his/her concentration and
the ability to plan and impair
his/her ability to self-appraise, make judgments and often minimise
regard for consequences of his/her
actions.
The disorder is often not
understood and minimised by the public and patients alike. It is a
neuro-chemical disorder of the brain
which clearly affects many
important functions of the brain, including our abilities to conduct
our daily lives, professions, relationships
and many higher order
functions of the brain. Depressed people may make decisions which
seem reasonable and rational to them at
the time of their illness,
for example even attempting suicide, but which they later realise
were driven by the distorted reasoning
of depression."
59.8
Dr Williamson concluded, on the basis of
her clinical assessment of Nthai, that:
Nthai,
"may have been
depressed at the time of his irrational transgressions in
October/November 2009 which could have influenced
his insight and
judgment."
Her opinion enjoys the support of
Prof Woolf. Nthai himself admits that he had very little regard to
the consequences of his actions.
In his own words he stated that:
"I had no regard to the
consequences ofmy actions."
59.9
Nthai
declares that he has fully recovered from the health condition and
Major Depression and Anxiety that led to him taking irrational
and
erratic decisions. This declaration is based on the findings of Prof
Woolf who examined and conducted tests on him on 21 and
27 August
2018 and reported that:
"The findings suggest that
he was asymptomatic for depression. The undersigned found no reason
why Mr Seth Azwihangwisi Nthai
should not be reinstated in his
previous professional role as an advocate.
"
59.10
On 3 October 2018 Dr Williamson also
examined and assessed Nthai. In her report she made the following
observations:
''Mr Nthai made a recent
appointment for me to conduct a psychiatric assessment on him on 3
October 2018. He explained that he intended
to apply for re-admission
as an advocate and would like to include my findings for the purpose
of the proposed application.
He arrived on time for his
appointment, very well groomed and fully oriented for time, place and
person with normal speech and appropriate
behaviour. I did not
conduct any formal neuro-cognitive testing as in my opinion, Mr Nthai
appeared full cognitively intact.
His mood was normal and not
depressed Mr Nthai discussed the events which Jed to his disbarment
in great detail and he is still
unable to offer a logical explanation
for the rash decisions he made in October/November 2009 which had
such negative consequences
for him.
Mr Nthai shows no symptoms of
depression, his neuro-vegetative symptoms of sleep, appetite and
energy are normal, his mood is stable,
he socialises well and his
neuro-cognitive executive functions which include attention, focus,
concentration, memory, ability to
plan, make decisions and have
insight into his own behaviour are all good and functioning well
....
I conclude that
Mr Nthai is not suffering from depression at present. Affording Mr
Nthai a second chance by re­ admitting him
to the Roll of
Advocates would contribute to his self esteem and restore his
dignity.
"
59.11
Accordingly the reports of the said
experts convincingly demonstrate that Nthai has fully recovered from
the health condition that
probably resulted in his irrational and
corruptive conduct during October 2009.
59.11.1
Both
the PSA and JSA do not dispute the medical reports of the above named
experts. They accept that Nthai suffered from depression
and anxiety
as described by both medical practitioners and that he has fully
recovered.
59.11.2
The
PSA though seems to cast doubts on the conclusions of the experts.
This they do without having obtained their own expert reports
on
Nthai. The conclusion that they have reached is not based on any
objective facts or expert advice.
52.11.3   It was argued
on behalf of Nthai that Nthai was under treatment or taking
medication. The comments by the PSA
show quite clearly that it is
ignorant insofar as the illness of depression and anxiety are
concerned.
59.12
In support of his plea that this Court
should support the opinion of the medical practitioners Nthai relies
on Ex parte Caminsky
1958(3) SA 249
(NPD),
252 B-D. In this case the Court,
having found that the applicant's misconduct could be attributed to
the influence of liquor, had
the following to say in accepting the
opinion of a medical practitioner with experience of alcoholics and
the opinion of the magistrate:
"But
account must be taken of the nature of the misconduct for which the
applicant was struck off. It did not involve criminal
offences such
as theft or fraud; rather was it professionally unethical and morally
reprehensible. But in my opinion it was the
sort of misconduct which
can fairly be attributed to the influence of liquor. If that
influence has permanently disappeared there
is, in my opinion, no
reason why the applicant should not be a fit and proper person to
practise as an advocate. In the light of
the opinion of a medical
practitioner with the experience of alcoholics and the opinion of a
magistrate who is aware of the standard
of behaviour expected of
legal practitioners, both opinions being based on long personal
acquaintances with the applicant, we may
safely regard him as now
permanently released from the subservience to liquor. In all the
circumstances, therefore, reformation
has been established.
"
59.13
The Court was again referred to another
case, the Canadian case of
Barry
Miller v Law Society of Upper Canada 2004(ONLSHIP) 0004
.
It is contended that this case supports Nthai's case. We agree with
the contention and it is the approach we intend following.
In this
case the panel of the Law Society of Upper Canada had to deal with
the question whether Barry Miller was of good character
and whether
on that basis,
inter alia,
he
should be re-admitted. The panel accepted that his act of misconduct
was not caused by any fundamental character flaw or repeated
cause of
conduct but
''they arose because of
the deep depression he found himself in following his misconduct in
Manitoba in 1993 and his subsequent
inability to come to grips with
what he had done. Once he hit the bottom in the supreme of 2001 and
was able to find proper help,
he has been able to rehabilitate
himself to the point where he can now accept and deal with his prior
misconducts and move forward."
59.14
The decision of the Court in
re-admitting Barry Miller was based,
inter
alia,
on the medical evidence by a
Dr Alberto Choy, a psychiatrist, and Dr Gary Richard Schoener, a
licensed psychologist who had both
assessed the said Barry Miller.
59.15
Finally on this aspect and in support of
the health condition of Nthai, we were referred to the speech by
Michael Kirby, the Australian
Judge and Academic. This speech
appeared under the title
"Speech:
Lawyer's Society? The influence of Legal Studies and Practice,
Stress, Clinical Depression and Sexuality (2015) 88(4),
University of
New South Wales Law Journal 1438."
The
speech was made in honour of a bright pupil studying for admission to
the New South Wales Bar who had committed suicide. In
that speech the
Learned Judge had,
inter alia,
the
following to say:
"To honour Daniel, we must
resolve to talk about depression. To analyse its causes. Above all,
understand why it is common
amongst law students, legal practitioners
and Judges. Although I did not feel its pain myself, I spent many
years of enforced silence
about another demon of others that Daniel
knew: sexual difference. So, it is not hard for me to understand the
challenge of depression.
The way out of the closet is to put
depression on the table, turn it around, examine it, acknowledge it
and challenge its corrosive
effects.
"
59.16
Finally, we have come to a conclusion
that Nthai has made a good case that his misconduct was due to his
poor health condition at
the relevant time and that in that respect
he has completely reformed.
[60]
SELF-RECOVERY AND REFORMATION
60.1
Nthai
took it upon himself to identify and admit all his transgressions and
fully appreciate their varied causes and origins. He
explained that
feelings of guilt and acceptance of the seriousness of his
transgressions started when the complaint was lodged
by the State
Attorney. He continues and testifies that although at the time he was
overwhelmed by the publicity deep down in his
heart he knew that he
was wrong. He understood the importance of upholding the ethical
rules and standards of the profession. In
fact he had himself written
an article dealing with ethical rules. The lack of moral judgment
showed serious defects of character
which had been corrected.
60.2
On
the basis of the facts before the Court it must be accepted that
Nthai has completely, genuinely and permanently reformed and

furthermore that there is no chance that he will transgress the rules
of the practice in future. Nthai has taken the Court into
his
confidence. The surrounding actions of Nthai as described by
witnesses at different times and places show that Nthai has genuinely

shown remorse. The valid consideration is not the belief that Nthai
would never be rehabilitated due to the seriousness of the

transgressions as the PSA would like this Court to believe. It is
rather whether Nthai has placed objective facts before this Court

showing genuine contrition. The PSA, JSA, the GCB and LPG 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 re­

admitted. 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 practise as an advocate again. In Kudo 1977
at 675G to 676A
the Court had the following to say:
"One of the basic criteria
for admission or strike off or re-admission is therefore whether or
not the person concerned is
"fit and proper''. In relation to
admission this is a question of fact, as has been said above, and not
of "discretion''.
Whether the position is any different in
respect of striking off or re-admission is not clear. It may well be
that it is now implicit
in the Act that admission and re-admission
are to be dealt with on an equal footing. But that need not be
finally decided here.
I shall assume that the Court's Jurisdiction to
re-admit is inherent and not founded on the Act. In exercising that
Jurisdiction,
I think, however, that the Court ought to follow the
basic requirements of section 4 of the Act,· that is
if the
applicant shows that he is now a fit and proper person to practise
again, he ought to be re-admitted unless cause to the
contrary is
shown to the Court's satisfaction. That is not inconsistent with the
existing authorities. They are at least clear
that, in the case of a
person struck off the role as being no longer a fit and proper person
to remain an attorney, he must in
the first place show; in order to
be re-admitted, his "complete and permanent reformation';·
that is, that he is now
a fit and proper person to practise again.
For reasons already given this is essentially a factual enquiry
which, in my view; does
not fall within the ambit of discretion of a
Court of first instance.
60.3
In Kudo 1977, p676F-677A the Court dealt
with the onus resting on an applicant to prove that he has completely
reformed. It stated
that the onus on the appellant to establish the
facta probandum
was
the ordinary civil onus which means that it was on the balance of
probabilities. The use of the word "heavy" means
no more
than that applictant must prove his complete reformation on the
balance of probabilities. The Court, relying on Wigmore
on Evidence,
3rd Edition, SEC 1986 cited with approval the following passage from
the American case by Willis CJ Richmond v Norwich,
96 conn. 582, 115
ATL.11 in order to establish the
facta
probandum
"Character ... must be
proved in three possible ways: (1) The estimate in which the
individual is held in the community; his
general reputation as to the
trade in question.
(2) The opinion as to this
trade or those who have known the individual and have an opportunity
to know whether he possessed this
trade or not. (3) The acts of the
individual under somewhat similar circumstances promotes his
character as to his trade may be
inferred. The evidence of general
repute afford the basis for an inference as to actual character;
whether it be the entire character
or a single trade of character.
Method (1) is generally
recognised as an established method of proving character. Method (2)
is permitted in some jurisdictions,
but in most it is denied. Whether
or not
(1) was of quick temper will
require proof of the mental characteristics, and this is the proof of
a fact. No-one know so well about
this fact as he who has known the
person and had the opportunity to determine it. How much more
convincing is such evidence than
that of a witness who testified to
the general repute of this person as to his mental characteristics?
His testimony is based upon
hearsay and quite likely to rumour
and
gossip.
If mental characteristics is referred, there is no valid reason why
this fact may not be proved by any witness who knows
what it is.
Personal
observation and personal knowledge are a more trustworthy reliance
than general reputation. The decision to which we have
referred, and
others to which we need not refer, require the admission of evidence
of character from those who know."
(Our
own underlining)
Then the Court went further and
stated that:
"In the present type of
case it seems clear that personal knowledge and believe is
admissible.
"
In simple terms the paragraph
means that the Court may always rely on the evidence of those who
personally know the applicant as
to whether the applicant has
reformed completely or not.
[61]
REMORSE
61.1
Nthai testified that after listening
repeatedly to the transcripts of his conversations with Marcenaro on
10 October 2009 to 4 November
2009 his conscience worked on him. He
expressed regret on times without number. As indicated somewhere
supra,
he
was gnawed by the feelings of guilt. He realised that he had wronged
many people.
61.2
He showed contrition and genuine remorse
as early as March 2010 when he wrote a letter to the State Attorney
in which he apologised
extravagantly to his clients and colleagues
and to the State Attorney. In the letter dated 25 March 2010 to the
State Attorney,
Nthai wrote that:
"4.
I would like to take this opportunity to sincerely apologise to the
Ministers of Trade and Industry
and Mineral Resources and the
Government of the Republic of South Africa (client).
5.
The Department of Mineral
Resources in particular has over years supported me by trusting a
number of matters to me, this contributed
sufficiently to my profile
growth.
6.
I also apologise to all my
colleagues at Freshfields Bruckhaus Deringer ("Freshfields') and
to you for the inconvenience and
embarrassment I have caused you.
"
61.3
Nthai
took further steps and extended his apologies to various individuals
and institutions. Nthai has extended further apologies
to all and
asked for forgiveness from the Pretoria Bar, the Professional and
Ethics Committee of the Pretoria Bar, The Government
and the people
of the Republic of South Africa, members of the Disciplinary
Committee, retired Judge K van Dijkhorst, Adv Bokaba
SC and Adv
Dreyer SC, Mr Maritz, Adv Malan (Proforma Prosecutors), for delaying
the proceedings of the DC, the State Attorney,
colleagues at
Freshfields, the claimants, the Ministers and colleagues in the
Department of Trade and Industry and Mineral Resources,
the President
of the Arbitration Tribunal, Professor Vaughan Lowe QC, the
arbitrator, the Honourable Charles N Brown and the arbitrator,
the
Honourable Joseph Matthews and the secretary of the Arbitration
Tribunal, Ms Eloise Obadia, Peter Leon of WW, and Justices
Louw and
Preller.
61.4
The Senior Traditional Leader of the
Tshisahulu Village, also in line with the Venda custom and practices,
extended an apology on
behalf of Nthai.
[62]
After
the removal of his name from the roll, Nthai had an indepth
self-introspection of defects of character and life. He has upon

painful reflection come to the full realisation that his conduct was
repugnant and unacceptable. He states that he accepts that
as a
leader of the Advocates Profession he had ethical and moral
obligations to lead by example and that he had a heavier
responsibility
to protect the integrity of the legal profession. He
has learned that greed and dishonesty are destructive and
dishonourable elements
that took him nowhere but led to shame and
embarrassment.
[63]
THE
APPLICATION
As indicated above on 16 October
2018 Nthai launched the current application and sought in it his
re-admission as an advocate. That
part of the proceedings was, at the
relevant stage, governed by the AAA, in particular section 5 thereof.
Nthai's attorneys had
correctly anticipated that by the time the
application was heard, the AAA would no longer be applicable and that
it would have
been replaced by the Act. For that reason the
application would continue under the provisions of s 24(1), s 26(1),
s 115 and s
116 of the Act.
[64]
At
the time Nthai launched his application, the AAA was still in force.
At that stage a person who applied to be admitted as an
advocate had
to satisfy the Court at the hearing of the application that:
"(i)
he was over the age of 21 years and he was a fit and proper person to
be admitted
and authorised to be enrolled as an advocate;
(ii)
he was duly qualified and;
(iii)
he was a South African
citizen or that he had been admitted to the Republic for permanent
residence therein or was ordinarily resident
in the Republic; and,
(iv)
in the case of any person
who had at any time being admitted to practice as an attorney in any
court in the Republic or elsewhere,
his name had been removed from
the roll of attorneys on his own application.
[65]
Now
in terms of the provisions of s 115 of the Act, Nthai has to satisfy
the requirements of s 24(2) read with 26(1) of the Act.
Section 115
provides that:
''Any person who immediately
before the date referred to in section 120(4) was entitled to be
admitted and enrolled as an advocate
...
is, after that
date entitled to be admitted and enrolled as such in terms of this
Act."
Nthai is such a person who was
entitled to be admitted and enrolled as an advocate. He must
therefore satisfy the requirements of
section 24(2) read with section
26.
[66]
66.1     Section
24(1) provides that:
''A
person may only practise as
a legal practitioner if he or she is admitted and enrolled to
practice as such in terms of this Act."
In terms of this section a person
can only practise the calling of an advocate if he applies to a High
Court to be admitted as such
and is admitted and enrolled as such;
66.2
section 24(2) provides that:
"The High Court must admit
to practice and authorise to be enrolled as a legal practitioner,
conveyancer, notary or any person
who, upon application, satisfies
the Court that he or she
-
(a)
is duly qualified as set
out in section 26
(b)
is a-
(i)
South African Citizen; or
(ii)
…
.
(c)
is fit and proper to be
admitted; and
(d)
has served a copy of the
application on the council, containing the information as determined
in the rules within the time period
determined in the rules."
66.3
that Nthai is a South African
citizen is not in dispute. He was born on 1 October 1959 in a village
called Tshifudi, in the province
of Limpopo, South Africa. He holds a
South African Identity document number 5910015830081;
66.4
that he is duly qualified as set
out in s 26(1)(a)(ii) is not in dispute. According to s 26(1):
''A
person qualifies to be
admitted as a legal practitioner, if that person has
-
(a)
satisfied all the
requirements of the LLB degree obtained at any University registered
within the Republic, after pursuing for that
study degree
-
(i)
the course of study not
less than 4 years; or
(ii)
the course of study not
less than 5 years if the LLB degree is preceded by a bachelor's
degree other than the LLB degree, as determined
in the rules of the
University in question and approved by the council.
"
66.5
We are satisfied that Nthai
satisfies the requirements of s 24(2) of the Act read with
26(1)(a)(ii). He holds the degrees of bachelor
of procuration and
bachelor of laws. For the purposes of the requirements of s 24(2)
read with s 26(1) (a) (ii) it is not necessary
to refer to Nthai's
further qualifications.
[67]
SERVICE OF COPIES OF THE
APPLICATION
67.1
Nthai's application was served only on
POLSA in terms of the provisions at the time of Rule 3A(1)(c) of the
Uniform Rules of Court,
which provides as follows:
"Subject to the provisions
of rule 6 insofar as they are not inconsistent with the provisions of
this Rule, a person applying
for admission to practise and for
authority to be enrolled as an advocate shall, at least 6 weeks
before the date on which this
application is heard by the Court-
(a)   ….
(b)   ….
(c)   serve a copy of
the documents and affidavit referred to in paragraphs (a),(b) and (A)
on the secretary of the Bar
Council or Society of Advocates of the
division concerned.
"
Nthai confirms that he delivered,
in compliance with Rule 3A(1)(c), a written notice of the application
for his re-admission to
the registrar of this Court six weeks before
the date on which the application was to be heard.
[68]
POLSA
was in existence at the time Nthai launched his application. This
fact is evidenced by the directive dated 24 July 2018 issued
by the
Judge President of this division. It states in paragraph 2 thereof
that:
"With effect from 1 August
2018 it will no longer be necessary for the applications for
admission as an advocate to be served
also on the Pretoria Society of
Advocates. Only service on the Polokwane Society of Advocates will
suffice.
"
This directive was sent to all
practitioners.
[69]
Accordingly:
69.1
service of a copy of Nthai's application
on the POLSA was sufficient. It was not necessary to serve copies on
the PSA, JSA and the
GCB;
69.2
the statement by Mr Ellis that the
Pretoria and Johannesburg Bars and the Vice Chair of the General
Council of the Bar should have
been properly cited as Respondents,
served with the application for Nthai's re-admission, does not
reflect the correct legal position,
at the time, of the provisions of
Rule 3A(1)(c) of the Uniform Rules of Court nor does it take into
account the Practice Directive
issued by the Judge President of this
Division;
69.3
in all fairness the name of the JSA is
not mentioned in the Practice Directive. Even if that is the case
there was no need in terms
of the provisions of rule 3A(1)(c) for
Nthai to serve a copy of his application on the JSA;
69.4
the statement by Hlaleleni Kathleen
Matolo-Dlepu who deposed to the affidavit of the Legal Practice
Council ("the LPG"),
that required Nthai to serve copies of
his application on the PSA, JSA and GCB lacks merit;
69.5
at any rate the PSA was informed of
Nthai's application for re-admission in a letter dated 19 October
2018 by Nthai's attorneys
of record. The said letter reads as
follows, among others:
"2.
Our client has launched an application tor re-admission as an
advocate in the High Court Limpopo
Division, Polokwane under case
number 6271/2018. If re­ admitted our client intends to Join the
Polokwane Society of Advocates
(Polokwane Bar).
3.
In view if (sic) the
interest of Society of Advocates (Pretoria Bar) has in the matter, we
have been instructed to bring the application
to the attention of the
Pretoria Bar.
4.
You are kindly requested
to bring this application to the attention of the Johannesburg
Society of Advocates.
"
[70]
We
accept that by reason of having a substantial interest in the outcome
of the application, or secondly, on the basis of the interest
of
justice, both the PSA and the JSA would want to take part in the
proceedings. The door was not closed to them as they could
still do
so as
amicii.
[71]
THE
LEGAL STATUS OF THE PSA, JSA AND GCB
69.1    The
approach of the PSA and JSA after being informed that Nthai had
launched his application in terms of
re-admission was to apply to
this Court on 30 November 2018 for intervention. The application for
intervention was granted by the
Full Bench of this Division
consisting of Makgoba JP and Phatudi J. On the said date, the
following order was granted:
"1.
The main application is postponed to 15 and 16 April 2019.
2.
The
Pretoria Society of Advocates (''PSA'J and Johannesburg Society of
Advocates (''JSA'J are granted leave to intervene in the
main
application and are joined as the first and second respondents in the
main application respectively, subject to the applicant's
right to
argue that the PSA and JSA do not have locus standi.
3.
The
applicant must serve the main application on the Legal Practice
Council, constituted in terms of the
Legal Practice Act 2014
which is
invited to consider the matter and file a report by not later than 11
February 2019 to the above honourable Court, if
so advised
4.
The
following terms are fixed:
4.1
The
PSA and JSA are required to deliver their answering affidavits in the
main application by no later than 30 January 2019;
4.2
The applicant will deliver
its replying affidavit, if any, by no later than 18 February 2019;
4.3
The
applicant will deliver its practice note, heads of argument, list of
authorities and chronology by no later than 18 February
2019; and
4.4
The PSA and JSA will
deliver their heads of argument, list of authorities and
discrepancies regarding the applicant's chronology
by no later than
11 March2019;
4.5
The
costs of the intervention applicants are reserved for determination
with the main application.
"
Following that Court order the PSA
became the First Respondent and the JSA became the Second Respondent.
The LPG became the Fourth
Respondent only upon its application for
intervention being granted unopposed on 15 April 2019. The LPC's
opposing affidavit was
deposed to by its chairperson, Hlaleleni
Cathleen Matolo-Dlepu.
71.2
Following the said order, the PSA
and JSA delivered their answering affidavits deposed to by Mr Ellis,
on behalf of the PSA and
Mr Green on behalf of the JSA. Both
respondents oppose Nthai's application for re-admission. The PSA's
answering affidavit was
served on Nthai's attorneys on 30 January
2019. It is not clear when the JSA's answering affidavit thereto was
delivered but certainly,
it was filed with the registrar of this
Court on 30 January 2019.
71.3
On 18 February 2019 the
Applicant's attorneys delivered Nthai's replying affidavit on the
Respondents' attorneys and also on POLSA.
In his replying affidavit
Nthai took the point that the PSA and JSA have no
locus
standi
to oppose his application.
This argument is based on the fact that the Act came into operation
on 1 November 2018. In terms of s
119 of the Act the AAA was
repealed.
71.4
In terms of s 4 of the Act, the
LPG is now charged with the regulatory functions traditionally
carried out by the GCB and its constituent
bars. Section 4 of the Act
provides that:
"The South African Legal
Practice Council is hereby established as a body cooperate with full
legal capacity and exercises
its jurisdiction over all legal
practitioners and candidate legal practitioners as contemplated in
this Act.
"
71.5
Section 5 of the Act sets out the
objects of the LPG as,
inter alia,
to
promote and protect the public interest, to regulate all legal
practitioners and all candidate legal practitioners and to enhance

and maintain the integrity and status of legal practitioners. See in
this regard section 5(c) of the Act.
71.6
Accordingly the provisions of
section 5 make it very clear that the role of
custos
morum
which before 1 November 2018
was played by the GCB, the PSA and the JSA, has now in law been taken
over by the LPG. The GCB, PSA,
JSA and the POLSA and all the
societies of advocates in the country have now all been stripped of
their role of
custos morum.
Since
November 2018 the GCB and its constituent bars have ceased to exist
as statutory bodies. In law they are in the same position
as a
deregistered company. That role now falls in law fully and to the
exclusion of the GCB and its constituent bars, to the LPG.

Consequently it follows that the powers, since 1 November 2018, to
make submissions regarding the applications to strike from the
roll,
the applicant's application to be re-admitted and applications for
the suspension of an advocate are now exercised by the
LPG.
71.7
The provisions of s 116(1) of the
Act make it as clear as crystal that the Act has now sounded a death
knell to the existence of
the GCB and its constituent bars as any
statutory bodies or as any body with the role of
custos
morum
where it states that:
''Any
enquiry in terms of any law repealed by this Act into the alleged
unprofessional or dishonourable or unworthy conduct of a
legal
practitioner which has not been concluded at the date referred to in
section 120(4), must be referred to the council which
must treat it
as it deems appropriate.
"
71.8
Following the aforegoing reasons
the GCB and its constituent bars countrywide, may in law not even
deal with pending applications,
such as the current one and any
enquiries into alleged unprofessional or dishonourable conduct of its
own members.
[72]
Accordingly
we find that the PSA and JSA do not have any
locus
standi
to oppose this application
and that only the LPG does.
[73]
When
confronted with the question as to what should the Court do with the
affidavits that Mr Ellis has filed on behalf of the PSA
and Mr Green
has done so on behalf of the JSA, counsel for Mr Nthai, Adv Shakwane
SC, submitted that such affidavits should be
disregarded in which
case only the affidavit filed on behalf of the LPG would be the only
document opposing the application for
re-admission.
[74]
On
the other hand, Mr Maritz, counsel for PSA, came up with a plausible
solution that the affidavit should be allowed so as to assist
the
Court to make an informed decision. But first he seemed to argue that
there was
locus standi by
consent.
In this respect he relied on a paragraph in Nthai's heads of argument
that stated that:
"8.7  The PSA and JSA
are in any event parties to these proceedings and the Applicant
accept that they were entitled to
participate and make
representations to the Court.
"
[75]
According
to Mr Maritz's interpretation of the said paragraph 8.7 it conferred
locus standi
on
the PSA. Mr Shakwane disagreed with him. Firstly, by any stretch of
imagination, the said paragraph cannot be interpreted to
mean that
Adv CHJ Badenhorst SC assisted by Adv Freddy Khunou, who crafted
Nthai's heads of argument, conferred any
locus
standi
on the PSA. Secondly, even if
they did they were in law not empowered to confer any
locus
standi
when none existed on the PSA.
We agree with Adv Shakwane SC ("Mr Shakwane") that the said
paragraph did not confer any
jurisdiction on the PSA and the JSA but
instead it only opened a door for the PSA and the JSA to come and
argue the point why they
contended that they have jurisdiction in
this matter.
[76]
76.1
We do not agree with Mr Shakwane's point that the affidavits filed by
Mr Ellis and Mr Green should be discarded. Our reasons
for
disagreeing with him are as follows. These proceedings are
sui
generis.
No
!is
exists between the Applicant, Nthai,
and the Respondents. In the interest of justice these affidavits
should be taken into consideration.
The purpose of these affidavits
is to put facts before the Court on the basis of which this Court
will make an informed decision.
This Court must take into account the
fact that the PSA and JSA are steeped in the knowledge of the
misconducts committed by Nthai;
that they alone possessed the
information regarding such misconducts; that the Act has recently
come into operation and that the
LPG was still grappling with its
provisions; and lastly and more importantly, that the LPG, as a
statutory body, was therefore
still ignorant about the misconducts of
Nthai. For these reasons it was only proper for the Court to have
regard to the said affidavits
in order to properly determine the
fundamental issues in these proceedings.
76.2 It is only incumbent for the
PSA and JSA to bring to the attention of the Court any conduct on the
part of the applicant that
renders him or her unfit to be admitted
for re­ admission. Consequently if any complaint is brought with
regard to any member
of the PSA or JSA or POLSA it is the duty of
such bodies to investigate such a complaint and, through the LPG, to
bring it to the
attention of the Court.
[77]
SUPPORTIVE REFERENCE
77.1
Nthai's application for restoration to
the roll of advocates came with supportive references by people with
personal knowledge of
Nthai; people who were experienced in assessing
character. These are the people who were imbued with considerable
knowledge of
Nthai and his circumstances and who, more importantly,
supported his application for restoration and pointed out to his
reformation.
77.2
Adv George Bizos SC ("Mr Bizos")
provided a supporting affidavit for Nthai's application for
re-admission. In his affidavit
he states,
inter
a!ia,
that:
"4.
I have served as a director of Lawyers for Human Rights (LHR). I met
Nthai through his activities
as a regional director of LHR and a
member of the Legal
&
Constitutional
Committee of the African National Congress (ANG). In this capacity,
Nthai participated in many conferences that shaped
democracy in South
Africa. When the ANC's Legal and Constitutional Committee convened a
conference on whether South Africa should
have the Nurenberg Style
Trials or adopt the Truth and Reconciliation route, Nthai was an
active participant.
5.
Nthai
participated in the activities of the JSC, first as the Limpopo
Premier's representative and later through appointment by
President
Thabo Mbeki. It was in this role that I came to know Nthai better.
6.
During
interviews of candidates Nthai always asked incisive and relevant
questions. It was, however, during close sessions that
Nthai's
intellect and wisdom has shown. His views were always listened to and
respected by all members of the JSC.
7.
When
the a/legations of his transgressions first surfaced, they were met
with disbelieve and shock. Nthai was regarded by his peers
as a man
of integrity.
8.
When he requested me to support
his application, I agreed to do so as I believe that Nthai still has
a role to play in the legal
profession. His removal from the roll of
practising advocates had left a void which was difficult to fill.
9.
I therefore support his
application for re-admission.
"
77.3
Quite clearly Mr Bizos had considerable
knowledge of Nthai which he gained over a long period of time. During
such period he had
gained the ability to assess Nthai's character. He
believes that Nthai still has a role to play.
77.4
Mr Maritz, for the PSA, seemed to
downplay the significance of Mr Bizos's support for Nthai's
application. He argued that the said
Mr Bizos supported Nthai's
application without the full knowledge of the primary facts of
Nthai's transgressions. This argument
lacks merit, in our view. The
implication by Mr Maritz was that Mr Bizos blindly supported Nthai's
application for re-admission
without even having had the basic facts
of Nthai's transgressions. This, in our view, was an attack upon the
integrity of an eminent
jurist, such as Mr Bizos. Mr Bizos knows
Nthai's transgressions. It was not necessary for him to detail them
in his affidavit.
77.5
The PSA, JSA and LPG have not commented
on the testimony of the witnesses who support Nthai's application.
They have not tendered
any evidence to contradict the evidence of
such witnesses. The affidavits of the PSA, JSA and LPG do not
directly contradict any
of Nthai's supporting affidavits. They have
not in their answering affidavits challenged such witnesses'
testimony and that evidence
cannot simply be discarded. The evidence
of Nthai's witnesses establish that Nthai has not relapsed into
dishonesty.
77.6
Such
testimony includes the evidence of witnesses such as Pastor Abraham,
Sigamoney, and Dr Williamson, who attested to their independent

observations and expressions of genuine repentance on the part of
Nthai and Prof Woolf who testified that during his treatment
of him,
Nthai expressed regret. For instance, his report has recorded the
following paragraph about Nthai:
"Mr Seth Azwihangwisi
Nthai saw me on an intermittent basis since that time, and during
sessions informed me that he was removed
from the roll of advocates.
He expressed regret and was ashamed of his actions that led to his
removal."
77.7
We
are satisfied that the remorse shown by Nthai is genuine and comes
from an appreciation and acknowledgement of the extent of
the damage
caused to the entire local and international legal community.
77.8
Consequently,
we are of the view that if the affidavits are carefully studied, the
evidence which is contained in them indicates
quite convincingly to
the satisfaction of this Court that Nthai's reformation has been
genuine and complete and that it is only
proper for this Court to
reinstate him as an advocate.
[78]
Mr Ellis was correct when, in paragraph
17 of his answering affidavit, stated that:
"The fundamental question
to be answered in an application of this kind is whether there has
been a genuine, complete and permanent
reformation on the applicant's
part. This involves an enquiry as to whether the defect of character
or attitude which led him to
be adjudged not fit andproper, no longer
exists.
"
This is the fundamental question
that the Court set out in paragraph 3.2
supra.
The onus rests
on Nthai to prove on the balance of probabilities that the defect of
character or attitude that led to his disbarment
no longer exists.
The statement of principles set out in many authorities is that a
test for re-admission as an advocate is the
same as that of admission
as an attorney or advocate. See in this regard Behrman at 577A-C;
Kudo 1977, 675G - 676.
[79]
Nthai
has adduced strong and cogent testimony of his complete reformation
through not only himself but, over and above, through
the testimony
of people who testified on his behalf. Those include eminent medical
practitioners. He has, in our considered view,
made full disclosure
of his misdeeds. He has been brutally honest by furnishing precise
and uncontroverted details of his interactions
with Marcenaro and the
various discussions that led to his downfall. His founding and
replying affidavits show to the satisfaction
of this Court that Nthai
has identified his character defects which brought about his
ruination.
[80]
It
is of paramount importance to single out the fact that since he
undertook not to practise in January 2010 he has, unlike Mr Christian

Serfontein Edeling, the subject of the Johannesburg Society of
Advocates v Christian Serfontein Edeling Case No. 326/2018[2019]

ZASCA 40 [29 March 2019], who, after having been struck from the roll
in this country went on to continue to practise as an advocate
in
Lesotho, respected the decision of the Court to remove his name from
the roll and observed his undertaking not to practise,
despite the
fact that he was admitted to practise as an advocate in both Lesotho
and Botswana.
[81]
Given
his abilities Nthai still has an important role to play in the legal
profession and society at large. Notwithstanding the
provisions of s
25(1) of the Act, Nthai has explained that his intention is to
contribute meaningfully towards the growth and development
of the
emerging POLSA which mainly serves the rural communities and small
towns within the Limpopo Province. In this regard:
81.1
distinguished legal practitioners, such
as Mr Bizos, who know Nthai, still believe that Nthai has a lot to
offer.
81.2
Krish Govender, a senior attorney of the
High Court of this country, said the following in his affidavit in
support of Nthai's application
for admission:
"When he approached me to
support his application for re-admission, I gladly accept it. In
fact, I felt that if this concern
on my shoulders would be offloaded
as I always wish that Nthai would one day consider re-joining the
profession. There are many
challenges that the profession is facing
today and lawyers of Nthai's experience and knowledge are needed more
than ever before.
"
81.3
Mr
Kovilan
Sigamoney states the following
in
his
affidavit:
"I genuinely realised that
the legal profession was poorer without Nthai's talent and skills
....
It
would indeed be sad and regrettable if Nthai is not given an
opportunity to re-enter the legal profession.
"
81.4
The Senior Traditional leader,
Thivhulawi Makumbane had the following to say:
''/
strongly believe that Nthai
still has an important role to play in South Africa. I therefore on
behalf of the entire community of
Tshisahulu and myself support his
application for re-admission. Finally, in line with the Venda
tradition and practices, it is
also incumbent upon me to apologise to
all the people that Nthai wronged due to his transgressions."
81.5
Mr Sipho Mathebula, the State Attorney
who was the instructing attorney in the Piero Foresti matter, had the
following to say
in
support
of Nthai's application for re­ admission:
''/
have read the founding and
replying affidavits and wish to confirm the correctness of the
contents thereof insofar as it relates
to me. I wish to add that I
was personally disturbed when the a/legation against the applicant
surfaced I had accepted his apologies
to me. I support his
application and wish that he will be given a second chance."
81.6
Nthai finds it quite surreal that the
PSA submits that, if re-admitted, he ought to refrain from
contributing to the development
of Jaw. According to him such
submission ought to be rejected. The legal profession and the public
will benefit immensely from
Nthai if he is given a second chance.
[82]
With
regard to the issue of
"disgorging
the ill-gotten gains';
it is
contended by both the PSA and the JSA that the failure by Nthai to
disgorge the ill-gotten gains is proof enough that he has
not
reformed. In addressing this issue of disgorgement of the ill-gotten
gains associated with his misconduct, Nthai has referred
this Court
to what the Full Court stated in Ex Parle Pillay and Others on the
subject. The Court said:
''Mr Pillay fully appreciated
that part of remedying his wrong is to disgorge himself of his ill­
gotten gains by repaying these
monies. He seeks a directive from the
Court to do so. While we accept that part of remedying his wrongs it
is for Pi/lay to disgorge
his so-called ''ill-gotten gains''. We
believe that it is not competent in Jaw for us to make such an
order."
[83]
It
would seem that striking off the applicants in Ex Parle Pillay was
considered to be the ultimate penalty and the Court steered
away from
dealing with that aspect of disgorging the ill-gotten gains. At any
rate, in his replying affidavit, Nthai has given
the assurance to
this Court that that represents an issue that could always be
revisited after the hearing of this application.
POLOKWANE SOCIETY OF
ADVOCATES STANCE
[84]
It
will be remiss of this Court if it
failed to deal
in extenso
with
the position adopted by this august body towards Nthai's application
for his re-admission. As pointed out earlier, POLSA, has
chosen to
support Nthai's application. It has pledged solidarity with him. If
the application is granted, Nthai will become its
member.
[85]
POLSA
is located within the province of Limpopo. No wonder Nthai served a
copy of his application on it. As already pointed out
such service
was effected in terms of firstly, Rule 3A(1)(c) of the Uniform Rules
of Court and secondly, in terms of the Practice
Directive issued by
the Judge President of this Division on 24 July 2018. Service at the
time was therefore proper.
[86]
At
the hearing of this application POLSA, which had filed an affidavit
deposed to by its chairman, Adv William Mokhare SC, was represented

by Adv Mokgerwa Makoti. For the purpose of presenting their position,
POLSA had delivered a practice note and heads of argument
crafted by
its team of counsel.
[87]
In
his presentation of POLSA's approach to the application, Adv Makoti
submitted that if this Court should find that Nthai has duly
served
his punishment and find no other reason to refuse his admission, it
should accept that Nthai is a fit and proper person
to be re-admitted
to practise as an advocate. He developed his argument and told the
Court furthermore that there were ample examples
of applicants who
were re-admitted after having their names removed from the roll.
POLSA, according to Adv Makoti, regarded Nthai's
transgressions as an
isolated breach from which he derived no personal benefit. By this
POLSA refers to the fact that Nthai did
not even receive the R5
million bribe he fought for.
[88]
Adv
Makoti argued that the law reports are replete with judgments of
advocates who had committed nefarious violations of the rules
of the
Bar and conduct that was unbecoming of advocates but who, after some
period, were re-admitted. Then he went on to make an
analogy of cases
in which individual advocates who were guilty of violating the most
sacrosanct ethical rules of the advocates'
profession were removed
from the roll and later re-admitted, on their application.
88.1
The first case that Adv Makoti referred
this Court to in this regard was the case of Johannesburg Society of
Advocates v Tiry [2018]
ZAGP J A-C 512. The respondent in that
matter, a practising advocate for 17 years, was found guilty of
double briefing and overreaching
in 106 cases. Paragraph [24] of the
said case listed in great detail the numerous violations by the said
respondent. Despite these
serious findings of dishonesty and the fact
that the respondent remained in practice whilst the investigation was
underway, the
Court found that there were exceptional circumstances
that warranted a suspension. This was because the JSA, the applicant
in that
case, did not act in haste against the respondent nor did it
seek to urgently suspend her from practice. The implication hereof
is
that the JSA is not even handed in all instances of violations of its
rules. Instead it was unable to explain why it took over
8 years for
it to bring an application against her. The Court itself found that
'there was no suggestion that she has
not conducted herself improperly"
during
the period she was under investigation. The respondent was suspended
from practice for a period of 3 years 2 of which were
suspended for 3
years on condition that the respondent paid a R500,000.00 fine in
instalments of R50,000.00 per month and on condition
furthermore that
she was not found guilty of unprofessional, dishonourable and
unworthy conduct during that period of suspension.
88.2
The second case that Adv Makoti referred
us to is the case of Law Society of the Northern Provinces v Kyle
[2016] ZA SCA 120.
The respondent in that matter, an attorney, had
failed to account for monies which he purportedly held in trust. He
failed to account
for monies he collected on behalf of clients; he
had fallen behind in paying counsel their fees; he practised without
a Fidelity
Fund Certificate and without complying with the Financial
Intelligence Act 58 of 2000. The Supreme Court of Appeal found that:
“
[24]
...
Mr
Kyle acted in disregard of his client's best interests, failed to
observe the most fundamental rules relating to the keeping
of
accounting records, did not heed the regulatory directions of the Law
Society, did not pay counsel and an attorney, failed to
comply with
the Financial Intelligence Act requirements and behaved deplorably
when faced with his own bad behaviour. I also agree
that what was
called for was the clear finding that Kyle was not a fit and proper
person to continue to practise.
"
Nevertheless, as opposed to
removing his name from the roll of attorneys, the Court ordered that
Mr Kyle be suspended from practice
until such time as he had
0satisfied the Court that he was once again fit and proper to resume
practice.
88.3
The third case to which we were referred
was the case of Kwa-Zulu Natal Law Society v Moodley and Another
[2014] ZAKZPHC 87. In
that matter the respondent, an attorney, who
had been practising for his own account for 21 years, was found
guilty of overreaching.
His client, a widow who sought legal
assistance in claiming against an insurer from her deceased husband's
life insurance policy
and for winding-up his estate, was charged a
contingency of 25% in circumstances where no such fee was necessary
at all. At first
the respondent sought to justify his conduct unlike
Nthai. Again unlike Nthai he resisted the allegations in his
answering affidavit
and even his counsel's argument. However, when
the matter was heard he came clean and admitted to his wrongdoing,
the Court found
that:
"[18]
The conduct of the first respondent is admittedly manifestly
unprofessional and worthy of censure.
He disgracefully overreached in
the fee he charged, he mismanaged the winding-up of the deceased's
estate, and in the face of challenge,
initially had the temerity to
justify his wrongdoings.
"
The Court found further that:
"[20]
The first respondent has demonstrated that he was not fit and proper
to practise as an attorney. However,
I think too that the facts
demonstrated that he has learned a hard lesson and that there is no
reasonable danger of the events
recurring. The ultimate professional
penalty would, in my view; be too harsh in all the circumstances of
the case.
"
The Court found that a suspension
for a year, suspended for a period of three years, was appropriate in
the circumstances.
88.4
In Society of Advocates Kwa-Zulu Natal v
Lange [2016] ZAKZPHC 102, a case to which we were referred further by
Adv Makoti, the Court
found that an advocate, who had been in
practice as an attorney from 1980 and then an advocate from 2008, had
been part of a fraudulent
scheme to defraud a trust account for the
benefit of a client of her lover's, was still fit and proper to
continue practising and
that granting the most severe of professional
punishment was not appropriate in the circumstances. This finding was
made despite
the Court having found that the respondent lied under
oath. In such findings and sanction, the Court held that:
"[33]    In
determining a suitable sanction this Court also takes into account
that the respondent has clearly
shown remorse for her conduct, which
a clinical psychologist, Ms Broll terms a "moral lapse"....
We accept, as submitted
by Mr Hunt, that the respondent is therefore
not likely to repeat her conduct, having regard to the consequences
it has brought
to her. Not only has she had to face the humiliation
of a disciplinary enquiry at which she was found guilty of
misconduct, but
she has also endured the significant physical and
psychological trauma, including being hospitalised as a result of
stress.
"
88.5
Prior to the application being heard by
the Court the respondent in the Lange matter was subjected to a
disciplinary hearing by
the KZN Bar Council. This Disciplinary
Committee found her guilty of misleading the Court and being a part
of the scheme to defraud
a trust. When the Committee gave a sanction
of 6 months' suspension, the respondent tendered an immediate
resignation. The Court,
in considering the appropriateness of the
sanction in light of this factor, held that:
"[35]
...
there was obvious
concern in this case expressed by the applicant that the respondent
resigned as a member of the Society after
receiving the decision of
the committee. The applicant construed the respondent's decision to
resign as an attempt to avoid the
consequences of her misconduct.
However, having fully considered the explanation of the respondent
(that she would face severe
financial consequences) and the contents
of the report by Ms Broll, which have not been refuted, I am
satisfied that the respondent
did not act with ulterior motive to
avoid the penalty imposed by the committee."
88.6
At the time the Respondent had three
part-heard matters, the Court, in further consideration of whether
its sanction was improper
at all, held:
"[36]    I
however accept the submission of the respondent's counsel that if she
were to be suspended, she should
be allowed the period of time to
wind-up her affairs
...
In order to avoid
any prejudice to the respondent's clients, I considered that any
suspension imposed take effect from 1 July 2016,
thereby allowing
sufficient time for these matters to be completed
"
[89]
From
the aforegoing cases Adv Makoti drew the following conclusions:
89.1
Firstly, there is a striking resemblance
between the facts of Nthai's case and those of the cases he has
referred the Court to.
Each of the cases demonstrates a dishonest,
unprofessional and unbecoming behaviour of some practitioners.
However, what is of
paramount importance to stress is that despite
their misconducts, those practitioners were not permanently barred
from practising.
In many cases, their sanctions were suspended.
According to him this is an important fact that the Court should bear
in mind when
considering whether Nthai has done his time and served
his punishment.
89.2
Then he continued to argue that full
disclosure and complete acknowledgement of one's wrong are important
considerations to bear
in mind as Nthai has done.
89.3
The public shame that is visited by a
finding of dishonesty and misconduct is an important factor in
considering an appropriate
sanction. Public shame is equally an
important consideration to bear in mind when considering a
re-enrolment application.
89.4
Even the most dishonest of behaviours
can be forgiven if an applicant is able to demonstrate that not only
will he not repeat the
same shameful conduct in future but he is
permanently reformed.
89.5
Adv Makoti found support in the case of
General Council of the Bar of South Africa v Geach; Pillay v
Prretoria Society of Advocates;
Bezuidenhout v Pretoria Society of
Advocates 2013(2) SA 52 (SCA)
in
that some of the individuals who had been struck off the roll by the
Supreme Court of Appeal were re-admitted by the Full Court
of the
North Gauteng High Court.
[90]
In
what we consider to be very important, Adv Makoti referred us to the
judgment of Ex Parle Pillay and pointed out that that judgment

establishes that an individual struck off the roll is not permanently
barred from re-admission nor is striking off meant to be
a punishment
in perpetuity. Rather that the purpose of sanctioning a dishonourable
advocate is to rehabilitate their behaviour
and once rehabilitated
re-assessed whether it is desirable for that individual to be
re-admitted.
[91]
For
the aforegoing reasons POLSA is not only prepared to forgive Nthai
for his misconduct but also supports his application to be

re-admitted to practise as an advocate. POLSA submits that Nthai has
served his punishment; that he has shown remorse for his actions
and
that he has undertaken never commit similar offences again. It is
therefore sufficient for the Court to exercise its discretion
in his
favour to re-admit him to practise as an advocate. We accept, as a
vital point of consideration, the submission made by
POLSA that
punishment is not meant to break a
person but is meant to correct reprehensible conduct. After serving
many years out of practice,
there can be no doubt that Nthai has
learned from his mistakes and that he will, henceforth, not lend
himself to similar strikable
conduct
.
[92]
COSTS
92.1
The PSA and JSA should not have entered
the affray. We have already given reasons why they should not,
qua
the PSA and JSA, have entered the
battle. For that reason they are not entitled to any order of costs.
92.2
The LPG was required, in terms of the
Court Order dated 30 November 2018, to consider Nthai's application
and thereafter file a
report with the Registrar of this Court. The
LPG has failed to file such a report. The Court would have given the
directive about
the matter after considering the report by the LPG.
Mr Shakwane complained about the LPC's failure to comply with the
Court order
and even worse its deafening silence in failing to
furnish reasons why it completely adopted a supine attitude towards
an express
court order. For these reasons they are not entitled to
costs.
92.3
POLSA has not asked for costs against
Nthai. Considering its approach to Nthai's application it would have
been a surprise if they
did.
92.4
The judgment does not make reference to
Adv N Cassim SC who was acting for the JSA. It is because he firstly
indicated that he would
be brief and thereby save time; secondly,
that he did not want to argue the points already argued by Adv T
Motau SC and Mr Maritz
SC and more importantly he had confirmed that
he aligned himself with the position adopted by Mr Maritz.
92.5
Finally with sanguine in his voice that
the PSA, JSA and LPC will find it in their hearts to forgive Nthai,
Mr Shakwane used the
following quotation to try and win them over: He
referred the court to the sermon delivered on Christmas Day 1957 by
Dr Martin
Luther King delivered at the Dexter Avenue Baptist Church
in Montgomery, Alabama which was called "Loving your Enemies:
"We must develop and
maintain the capacity to forgive. He who is devoid of the power to
forgive is devoid of the power to love
...
Forgiveness does
not mean ignoring what has been done or putting a false label on an
evil act. It means, rather, that the evil act
no longer remains as a
barrier to the relationship. Forgiveness is a catalyst creating the
atmosphere necessary for a fresh start
and a new beginning. It is the
lifting of a burden or the cancelling of a debt
...
He went on to
say, "There is some good in the worst of us and some evil in the
best of us. When we discover this, we are less
prone to hate our
enemies.""
[93]
In
our view the applicant has made out a good case for the relief that
he seeks and accordingly the following order is made:
1.
The applicant is hereby re-admitted as a legal practitioner of the
High Court
of South Africa to be enrolled as an advocate.
E M MAKGOBA
JUDGE PRESIDENT OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
PM MABUSE
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the Applicant:

Adv Shakwane SC
Adv Khunou
Instructed
by:

Werksmans Attorneys
c/o Kgatla Incorporated
Counsel
for the First Respondent (PSA):       Adv
NGD Moritz SC
Instructed
by:

Bernhard van der Hoven Attorneys
c/o Kampherbeek
&
Pogrund
Counsel
for the Second Respondent (JSA)   : Adv N Cassim SC
Instructed
by:

Edward Nathan Sonnenbergs Inc.
c/o
Pratt, Luyt
&
De Lange
Counsel
for the Third Respondent:
Adv M Makoti
Instructed
by:

Tumi Mokwena Inc
Counsel
for the Fourth Respondent:
Adv T Matau SC
Instructed
by:

DMR Attorneys
Dates
heard:

15 April 2019
Date
of Judgment:

24May2019