Johannesburg Society of Advocates and Another v Nthai and Others (879/2019; 880/2019) [2020] ZASCA 171; 2021 (2) SA 343 (SCA) ; [2021] 2 All SA 37 (SCA) (15 December 2020)

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[2020] ZASCA 171
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Johannesburg Society of Advocates and Another v Nthai and Others (879/2019; 880/2019) [2020] ZASCA 171; 2021 (2) SA 343 (SCA) ; [2021] 2 All SA 37 (SCA) (15 December 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 879/2019 and
Case
no: 880/2019
In
the matter between:
JOHANNESBURG
SOCIETY OF ADVOCATES
FIRST APPELLANT
GENERAL
COUNCIL OF THE BAR OF
SOUTH
AFRICA

SECOND APPELLANT
and
SETH
AZWIHANGWISI NTHAI

FIRST RESPONDENT
PRETORIA
SOCIETY OF ADVOCATES

SECOND RESPONDENT
POLOKWANE
SOCIETY OF ADVOCATES

THIRD RESPONDENT
THE
SOUTH AFRICAN LEGAL PRACTICE
COUNCIL

FOURTH RESPONDENT
Neutral
citation:
Johannesburg
Society of Advocates and Another v Seth Azwihangwisi Nthai and Others
(879/2020
and 880/2019)
[2020] ZASCA 171
(15 December 2020)
Bench:
PONNAN,
CACHALIA, DAMBUZA and MOCUMIE JJA and EKSTEEN AJA
Heard:
2
November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10:00 am on 15 December 2020.
Summary:
Advocate
– misconduct – application for readmission – nature
of proceedings – onus to be discharged by applicant
seeking
readmission – standing of General Council of the Bar of South
Africa and constituent Bars.
ORDER
On
appeal from
:
Limpopo Division of the High Court, Polokwane (Makgoba JP and Mabuse
J, sitting as court of first instance):
judgment reported
sub
nom Nthai v Pretoria Society of Advocates and Others
[2019]
ZALMPPHC 23
(1)
The application by the Pretoria Society of Advocates for leave to be
joined as the third appellant in
the appeal is dismissed.
(2)
The application by the first and second appellants for leave to
adduce further evidence is dismissed.
(3)
The appeal is upheld with costs, excluding counsel’s fees.
(4)
The orders of the court below, dated 24 May 2019 and 18 July 2019,
are set aside and each is replaced
with the following:
‘
The
application is dismissed with costs, excluding counsel’s fees.’
(5)
The Registrar is directed to forward a copy of this judgment to the
National Director of Public Prosecutions.
JUDGMENT
Ponnan
JA (Cachalia, Dambuza and Mocumie JJA and Eksteen AJA concurring)
[1]
‘The slippery slope from ambition to greed to dishonesty’
[1]
is
a pithy, yet apt introduction to this appeal, which lies against a
decision of the high court to readmit an advocate to practice.
[2]
Advocates are required to be of complete honesty, reliability and
integrity.
[3]
The need for absolute honesty and integrity applies both in relation
to the duties owed to their clients as well as to the courts.
[4]
The profession has strict ethical rules to prevent malfeasance.
[5]
This
is for good reason. As officers of the court, Advocates serve a
necessary role in the proper administration of justice. Given

the unique position that they occupy, the profession has
strict ethical rules. The observance of those rules is,

regrettably, not always assured. Because ‘[t]he preservation of
a high standard of professional ethics [has] been left
almost
entirely in the hands of individual practitioners, it stands to
reason, firstly, that absolute personal integrity and
scrupulous
honesty are demanded of each of them and, secondly, that a
practitioner who lacks these qualities cannot be expected
to play his
part’.
[6]
The
first respondent, Mr Seth Azwihangwisi Nthai, who had been exposed as
precisely such a person in a particularly illuminating
way, was
previously struck from the roll of advocates.
[2]
Mr Nthai was admitted as an advocate on 19 January 1988 and became a
member of the Pretoria Society
of Advocates (PSA) on 1 August 1996.
Senior status was awarded to him in December 2006. Thereafter, he
also served as the chairperson
of PSA’s Bar Council. In 2007,
Mr Nthai was appointed by the State Attorney to act as lead counsel
on behalf of the South
African Government (the Government) before the
International Arbitration Tribunal (the arbitration tribunal). The
claimants in
that matter, who were Italian nationals, had asserted
that South Africa’s new mining laws contravened a bilateral
investment
treaty between Italy and South Africa.
[7]
Before the formal hearing could commence, the claimants had expressed
a willingness to withdraw the claim. What stood in the way
of a
withdrawal was the issue of costs, which amounted to about €5
million (approximately R50 million at the then prevailing
exchange
rate). The claimants accordingly required the Government to consent
to the withdrawal of the claim.
[3]
Mr Nthai met on a number of occasions with the CEO of one of the
claimant companies, Mr Marcenaro.
He
did so without the knowledge of the Government or the State Attorney,
who had briefed him in the matter.
They
initially met at their respective homes in Johannesburg. Later, Mr
Nthai travelled to Italy. During these meetings, Mr Nthai
attempted
to solicit from Mr Marcenaro a bribe of R5 million, which he required
to be paid into his foreign bank account. In return,
he undertook to
ensure that the Government would agree to settle the dispute on the
basis that each party would pay its own costs,
thus potentially
saving the claimants millions of Rand, at the expense of his client,
the Government.
[4]
Mr Nthai was not aware that Mr Marcenaro had recorded their
conversations. In December 2009 it came
to the attention of the
claimants’ legal team that Mr Nthai had been communicating with
Mr Marcenaro. The State Attorney
who had instructed Mr Nthai in the
matter was informed and, consequently, lodged a formal complaint with
the PSA on 22 January
2010. At that time, Mr Nthai held chambers in
both Pretoria and Johannesburg and was also a member of the
Johannesburg Society
of Advocates (JSA).
[5]
Upon receipt of the complaint, Advocate P Ellis SC, who was then the
convenor of the Professional and
Ethics Committee of the PSA, wrote
to Mr Nthai on 26 January 2010. In the light of the serious nature of
the allegations, Mr Nthai
was requested to immediately resign as the
Vice Chairperson of the General Council of the Bar of South Africa
(the GCB), a position
he then held, and to consent to his voluntary
suspension from practice as an advocate for the duration of the
investigation into
the complaints, failing which an urgent
application would be launched to suspend him from practice. Mr Nthai
acceded to those requests.
[6]
That evening, the Bar Council of the PSA met and resolved that a
disciplinary committee be appointed
to investigate the complaint.
Advocate NGD Maritz SC was appointed as the
pro
forma
prosecutor. A similar resolution was adopted by the JSA. Advocate LP
Halgryn SC was appointed as
pro
forma
prosecutor
on behalf of the JSA to assist Advocate Maritz. On 9 February 2010,
Justice K van Dijkhorst as well as Advocates JH Dreyer
SC and Bokaba
SC (respectively of the PSA and the JSA) were appointed as members of
the Disciplinary Committee (the DC). The disciplinary
proceedings
were held on 25 March 2010.
[7]
At the commencement of the proceedings, Mr Nthai intimated that he
would be tendering his formal resignation
from the JSA and the PSA.
He, and his legal representatives, then asked to be excused and,
despite being invited to remain, left
the hearing. The disciplinary
proceedings continued in their absence. On 6 April 2010 the DC
delivered its findings. It found Mr
Nthai guilty of, among other
things, corruptly attempting to solicit a bribe; placing his own
financial interest above the interest
of his client; disclosing
privileged information to the opposing party in the proceedings; and
betraying the confidence that his
client and instructing attorney had
placed in him to honestly, objectively and independently advance his
client’s interests.
[8]
The DC recommended that steps be taken to have Mr Nthai’s name
removed from the roll of advocates
in terms of s 7 of the Admission
of Advocates Act 74 of 1964 (the Advocates Act). On 13 April 2010 the
Bar Council of the PSA resolved
to bring an application to have Mr
Nthai’s name struck from the roll of advocates. A similar
decision was taken by the Bar
Council of the JSA. On 6 March 2012,
the PSA brought proceedings to remove Mr Nthai from the roll.
Although Mr Nthai filed a notice
of intention to oppose, he did not
deliver an answering affidavit or otherwise deal with or explain the
allegations against him.
He was struck from the roll of advocates,
without opposition, by the Pretoria High Court on 15 April 2013, and
ordered to return
his letters patent.
[9]
On 4 August 2010 the arbitration tribunal published its award. As
appears from the award, the claimants
had sought a discontinuance of
the arbitral proceedings, whereupon the tribunal dismissed their
claim and ordered them to pay a
sum of €400 000 in respect
of the Government’s fees and costs. The tribunal recorded the
interaction and discussions
that had taken place between Mr Nthai and
Mr Marcenaro and, having regard to the former’s ‘solicitation
of a bribe’
and ‘corrupt solicitations’, decided
that the Government could not claim the costs that were attributable
to Mr Nthai’s
work.
[10]
In October 2018, Mr Nthai applied
ex
parte
to
the Limpopo Division of the High Court, Polokwane, to be readmitted
as an advocate (the readmission application). The readmission

application was served only on the Polokwane Society of Advocates
(POLSA). After being informed that the application had been launched,

the PSA and the JSA applied for leave to intervene. On 30 November
2018 the application succeeded before Makgoba JP and Phatudi
J and
the PSA and the JSA were joined as the first and second respondents,
respectively, ‘subject to [Mr Nthai’s] right
to argue
that [they] do not have locus standi’ POLSA, who supported Mr
Nthai’s readmission, came to be cited as the
third respondent.
The order also directed Mr Nthai to serve the readmission application
‘on the Legal Practice Council (LPC),
constituted in terms of
the
Legal Practice Act 28 of 2014
which is invited to consider the
matter and file a report by not later than 11 February 2019 …
if so advised’.
[11]
The JSA, the PSA and the LPC (the LPC came to be cited as the fourth
respondent in the matter) all filed comprehensive
affidavits in
opposition to the readmission application. The readmission
application was heard on 15 April 2019. Judgment was delivered
on 24
May 2019. Despite opposition by the PSA, the JSA and the LPC, the
application succeeded before the high court.
[8]
[12]
On 11 and 14 June 2019 the JSA and the LPC respectively filed
applications for leave to appeal. Mr Nthai thereupon
launched an
application in terms of
s 18
of the
Superior Courts Act 10 of 2013
that the readmission order ‘be executed in full pending the
outcome of the application for leave to appeal including future

appeals’. The
s 18
application was opposed by the JSA and the
LPC. The applications for leave to appeal and the
s 18
application
were heard on the same day. On 18 July 2019 the high court dismissed
the applications for leave to appeal
[9]
and allowed the
s 18
application (the
s 18
order).
[10]
[13]
The JSA appeals as the first appellant, with the leave of this court,
which was granted on 19 December 2019, against
the readmission
judgment, as also the
s 18
order, which is automatically appealable
under
s 18(4)(ii)
of the
Superior Courts Act. The
order of this court
also granted leave to the GCB to intervene in both appeals and
directed that they should be heard together.
The GCB is the second
appellant.
[14]
On 24 January 2020, Mr Nthai applied to the President of this Court
in terms of
s 17(2)
(f)
of the
Superior Courts Act for
the order of 19 December 2019 to be
referred to the court for reconsideration and, if necessary,
variation. On 24 June 2020, the
President dismissed the
reconsideration application. Whilst the reconsideration application
was pending, on 28 May 2020, the PSA
applied to the President to be
joined as the third appellant in the appeal. That application (to
which I will revert), which is
opposed by Mr Nthai, has been referred
by the President to the court for determination.
[15]
Preliminarily, it is necessary to pass some general observations
about: (a) the nature of the proceedings; (b)
the onus to be
discharged by an applicant seeking readmission; and, (c) the role of
the professional bodies in an application of
this kind.
[16]
As to (a):
Neither the high court, nor Mr Nthai and his legal
team, appeared to appreciate that these are not ordinary civil
proceedings,
but proceedings that are
sui generis
in nature.
As Nugent JA observed in
Van der Berg v General Council of the Bar
of South Africa
:
‘
Proceedings
to discipline a practitioner are generally commenced on notice of
motion but the ordinary approach as outlined in
Plascon-Evans
is
not appropriate to applications of that kind. The applicant’s
role in bringing such proceedings is not that of an
ordinary
adversarial litigant but is rather to bring evidence of a
practitioner’s misconduct to the attention of the court,
in the
interests of the court, the profession and the public at large, to
enable a court to exercise its disciplinary powers. It
will not
always be possible for a court to properly fulfil its disciplinary
function if it confines its enquiry to admitted facts
as it would
ordinarily do in motion proceedings and it will often find it
necessary to properly establish the facts. Bearing in
mind that it is
always undesirable to attempt to resolve factual disputes on the
affidavits alone (unless the relevant assertions
are so
far-fetched or untenable as to be capable of being disposed of
summarily) that might make it necessary for the court itself
to call
for oral evidence or for the cross-examination of deponents
(including the practitioner) in appropriate cases. In the present

case that might well have been prudent and desirable so as to resolve
the many questions that are raised by the evidence, but that

notwithstanding, the appeal can in any event be properly disposed of
on the undisputed facts. (For that reason it is also not necessary
to
revisit what degree of persuasion evidence must carry before facts
can be taken to have been established in cases of this kind.)
[11]
[17]
As to (b):
Where a person applies for readmission, who
has previously been struck off the roll on the ground of not being
fit and proper
to continue to practise:
[t]he
onus
is
on him to convince the court on a 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
readmitted, 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…’
[12]
[18]
In considering whether the
onus
has been discharged
the court must:
‘
...have
regard to the nature and degree of the conduct which occasioned
applicant’s removal from the roll, to the explanation,
if any,
afforded by him for such conduct which might, inter alia,
mitigate or even perhaps aggravate the heinousness of his
offence, 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 reinstatement, to his
activities subsequent to removal, to the expression
of contrition by
him and its genuineness, and to his efforts at repairing the harm
which his conduct may have occasioned to others.’
[13]
[19]
As
to (c):
Generally,
a factor of some importance in an application such as this is the
attitude of the professional bodies concerned.
[14]
However,
principally because the high court misconceived the nature of the
proceedings
(it
proceeded as if the professional bodies concerned were adversarial
litigants and that the ordinary approach as outlined in
Plascon-Evans
applied),
it found that the JSA and the PSA did not have
locus
standi
in the readmission application; and that the GCB (which did not
participate in the proceedings) and its constituent bars: (i) had

been stripped of their role as
custodes
morum
of the advocates’ profession by the establishment of the Legal
Practice Council (LPC); (ii) may no longer make submissions
in
applications to strike advocates from the roll or to readmit
applicants; (iii) ceased to exist as statutory bodies as of November

2018, when the Legal Practice Act 28 of 2014 (LPA) was brought into
force; and (iv) were in the same position as deregistered companies.
[20]
At odds with its earlier judgment, the high court appeared to accept
in dismissing the applications for leave to
appeal that the Advocates
Act applied to Mr Nthai’s application, because it had been
launched before the commencement of
the LPA. But, it reiterated that
the JSA had no standing in the application because, so the high court
reasoned, the JSA represented
advocates in the Gauteng province,
whilst Mr Nthai intended to practice in Limpopo.
[21]
The judgment on the application for leave to appeal further records
that ‘[the GCB], and not the JSA, would
have been the
appropriate party to take up the matter on behalf of the advocates’
profession’ and that the LPC should
not have participated in
proceedings launched before the commencement of the LPA.
[15]
But this directly contradicts the earlier judgment, which had
concluded that 'the GCB and its constituent bars countrywide, may
in
law not even deal with pending applications, such as the current
one’, and that ‘only the LPC’ had such
standing.
[16]
[22]
Mr Nthai launched his application for readmission on 18 October 2018.
The LPA, which repealed the Advocates Act,
[17]
commenced
on 1 November 2018. Section 12(2) of Interpretation Act 33 of 1957
regulates certain consequences of the repeal and replacement
of an
Act. In terms of that provision:
‘
Where
a law repeals any other law, then unless the contrary intention
appears, the repeal shall not—
…
(e)
affect
any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, forfeiture
or punishment as
is in this subsection mentioned, and any such investigation, legal
proceeding or remedy may be instituted, continued
or enforced, and
any such penalty, forfeiture or punishment may be imposed, as if the
repealing law had not been passed.’
[23]
The LPA contains no ‘contrary intention’ to indicate that
Mr Nthai’s readmission application,
which was already pending
in terms of the Advocates Act at the time of the LPA’s
commencement, should be determined in terms
of the LPA. Section 12(2)
of the Interpretation Act therefore has the consequence that Mr
Nthai’s application for readmission
had to be determined in
terms of the Advocates Act. This is consistent with the interpretive
presumption that legislation does
not operate retrospectively.
[18]
Mr
Nthai’s application therefore fell to be adjudicated under the
Advocates Act. In terms of the Advocates Act, it is clear
that each
of the JSA and the PSA had standing, as
custos
morum
,
to participate in readmission applications of this kind.
[19]
[24]
While the LPA does indicate an intention to place pending
disciplinary investigations and applications for removal
under the
LPC’s jurisdiction, it does not indicate a similar intention
with respect to readmission applications.
[20]
In
any event, even if the LPA were applicable to Mr Nthai’s
application, it would not prevent the GCB or its constituent Bars

from intervening. The LPA makes the LPC primarily responsible for the
protection and regulation of the legal profession.
[21]
However,
whilst the LPA confers primary jurisdiction for the discipline of
legal practitioners on the LPC, this does not deprive
existing bodies
from having a continuing interest in the professional ethics of the
profession or standing. The LPA requires the
LPC to establish
disciplinary bodies tasked with evaluating complaints about
professional conduct.
[22]
And,
it empowers the LPC to punish errant practitioners, including by
approaching the high court for their removal from the roll.
[23]
[25]
The LPA does not, however, render nugatory the role of the GCB and
the constituent Bars in the advocates’
profession or in the
professional conduct of advocates. It instead affirms the role of
persons other than the LPC in these matters.
Section 44(1) states
that the provisions of the LPA:
‘…
do
not derogate in any way from the power of the High Court to
adjudicate upon and make orders in respect of matters concerning
the
conduct of a legal practitioner, candidate legal practitioner or a
juristic entity’.
Section
44(2) adds:
‘
Nothing
contained in this Act precludes a complainant or a legal
practitioner, candidate legal practitioner or juristic entity from

applying to the High Court for appropriate relief in connection with
any complaint or charge of misconduct against a legal practitioner,

candidate legal practitioner or juristic entity…’
[26]
A legal practitioner or juristic person is accordingly entitled to
approach the high court for relief ‘in
connection with’ a
complaint of misconduct against a legal practitioner. This must
include applications concerning the readmission
of advocates
previously removed from the roll on account of misconduct.
[24]
Section
44 must thus be construed to empower the Bars, which are juristic
entities with legal personality and which have an interest
in
promoting and protecting the advocates’ profession, to involve
themselves in readmission applications and other matters
concerning
the professional misconduct of advocates.
[27]
The high court reasoned that Mr Nthai sought readmission in
Polokwane, which was outside of the jurisdiction of
the JSA or the
PSA, and that they were thus precluded from intervening by the
Uniform Rules and a directive of the Judge President
of the Polokwane
High Court. First, the JSA and the PSA, of whom Mr Nthai was a
member, had brought the disciplinary proceedings
against Mr Nthai
that led to his removal from the roll. They accordingly had a
material interest in the outcome of his readmission
application and
were best placed to make submissions on his suitability for
readmission. Second, neither the Uniform Rules, nor
the Practice
Directive, deprive the JSA and the PSA of standing to intervene in
readmission applications in different provinces.
[25]
They
merely state that, in an application for admission, an applicant
needs to serve papers on the Bar Council for the Division
concerned.
Neither purports to address the standing or entitlement of the GCB or
its constituent members to intervene in a former
member’s
application for readmission.
[28]
Moreover, the high court’s finding that the JSA had 'no
jurisdiction to intervene in readmission applications
which are moved
in any division other than the Gauteng divisions of the high court’
is unsustainable. If this finding is
upheld, it would be possible for
an advocate who was struck off in one province to apply for
readmission in another, thereby preventing
the participation of the
professional body that applied for his or her striking off. The
absurd consequence would be that every
readmission application would
be decided as if it were a first-time application for admission. In
that way, the professional body
that obtained the striking off order
would be precluded from placing the relevant facts relating to the
striking off before the
court hearing the application for
readmission. This cannot be in the interests of justice, nor can it
serve the objective of protecting
the public interest.
[29]
Each of the JSA and the PSA has an ongoing interest in the adherence
of advocates to the highest professional standards
and whether an
applicant for admission or readmission is a fit and proper person.
The fact that the LPC also has such an interest
does not deprive the
JSA or the PSA of its own interest – and therefore legal
standing – in legal proceedings such
as this.
[30]
In any event, a person may intervene in an application if such person
has a direct and substantial interest in
the outcome of the
litigation;
[26]
namely,
a legal interest in the litigation that may be prejudicially affected
by the judgment of the court and not merely a financial
interest.
[27]
Practising
advocates – and, more so, associations of advocates that
represent their interests – plainly have a material
interest in
protecting and promoting the status and dignity of their profession,
including by making submissions on the conduct
of errant
practitioners and its consequences.
[31]
What is more, joinder of a party is necessary if that party has a
direct and substantial interest that may be affected
prejudicially by
the judgment of the court in the proceedings concerned. This court
has set out the test as follows:
‘
The
issue in our matter, as it is in any non-joinder dispute, is whether
the party sought to be joined has a direct and substantial
interest
in the matter. The test is whether a party that is alleged to be a
necessary party, has a legal interest in the subject-matter,
which
may be affected prejudicially by the judgment of the court in the
proceedings concerned.’
[28]
The
court went on to hold that the primary question is the impact of the
order that is sought on the interest of third parties.
Particularly
important is the question whether the order sought cannot be carried
into effect without substantially affecting their
interests.
[29]
For
the purposes of assessing whether a party must be joined: ‘if
suffices if there exists the possibility of such an interest.
It is
not necessary for the court to determine that it, in fact, exists; in
many cases, such a decision could not be made until
the party had
been heard.’
[30]
[32]
Mr Nthai is a former member of the JSA, the PSA and the GCB. He was
struck off pursuant to an application brought
by the PSA. Following
upon the high court’s decision to readmit him, Mr Nthai joined
the Limpopo Society of Advocates, which
is affiliated to the GCB. It
is thus plain that the GCB, the PSA and the JSA had a direct and
substantial interest and, far from
lacking standing to participate in
the application, were necessary parties in accordance with the tests
set out above.
[33]
Moreover, our law recognises that associations that exist to promote
the interests of their members have the power
to intervene in
litigation that affects those interests.
[31]
In
Veriava
and Others v President, SA Medical and Dental Council, and
Others
,
[32]
the
Transvaal Provincial Division considered an application by individual
medical professionals and two associations of medical
professionals
to review a decision of the South African Medical and Dental Council
(SAMDC) in relation to misconduct by doctors.
The court there dealt
with a complaint that the SAMDC had failed to take appropriate
disciplinary action against State employed
doctors, who had failed to
ensure that Mr Steve Biko was properly treated and cared for. Through
their inaction and despite the
fact that he was obviously severely
injured, he was allowed to be transported by police on a long journey
in the back of a vehicle.
The court took the view that although the
SAMDC is the statutory
custos
morum
of the medical profession, and the guardian of the public, it did not
have an exclusive interest or role in that regard.
[34]
The court held that the medical professionals and their associations
had ‘a real and direct interest in the
prestige, status and
dignity of their profession’ and, consequently, in decisions by
the SAMDC on such conduct. If the individual
doctors believed that
the SAMDC had failed, they had the
locus
standi
to pursue the matter in the courts. Significantly, unlike the
professional bodies in this case, the SAMDC could, without the
intervention
of a court, strike a medical practitioner from the roll
on grounds of misconduct. The empowering Act prohibited unethical
conduct,
among other things, to protect the medical profession. It
could therefore be assumed, the court held, that other medical
professionals
would suffer injury if the SAMDC did not perform its
role.
[35]
These principles apply equally to the professional bodies and their
members in this case. Advocates have a legal
interest in protecting
the status and dignity of their profession. It is well-established
that the GCB and its constituent Bars,
including the JSA and the PSA,
are the
custodes
morum
of the advocates’ profession.
[33]
They
act in the interest of the legal profession, the court and the
public.
[34]
Indeed,
in a matter such as this, they may well have been failing in their
duty had they failed to place the information at their
disposal,
which was obviously material to the question of Mr Nthai’s
fitness, before the court. The high court was accordingly
wrong to
conclude that the GCB, the JSA and the PSA were no longer
custodes
morum
of the advocates’ profession and to conclude that the JSA and
the PSA had no standing in the readmission application. The
GCB and
its constituent Bars are voluntary associations with legal capacity
as governed by their Constitutions and, not statutory
bodies, as
supposed by the high court. Likening them to ‘deregistered
companies’ was likewise inapt.
[36]
The path has now been cleared for a consideration of the
substantive merits of the readmission application. The court
must be
satisfied that the applicant is a fit and proper person and that his
readmission would involve no danger to the public
or the good name of
the profession.
[35]
The
enquiry into whether an applicant is a fit and proper person to be
readmitted is a factual one.
[36]
As
it was put in
Swartzberg
v Law Society of the Northern Provinces
:
[37]
‘…
This involves
an enquiry as to whether the defect of character or attitude which
led to him being adjudged not fit and proper no
longer exists.
(
Aarons
at 294H.
)
Allied
to that is an assessment of the appellant’s character
reformation and the chances of his successful conformation
in the
future to the exacting demands of the profession that he seeks to
re-enter. It is thus crucial for a court confronted with
an
application of this kind to determine what the particular defect of
character or attitude was. More importantly, it is for the
appellant
himself to first properly and correctly identify the defect of
character or attitude involved and thereafter to act in
accordance
with that appreciation. For, until and unless there is such a
cognitive appreciation on the part of the appellant, 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.’
[37]
In arriving at the conclusion that Mr Nthai had discharged the heavy
onus resting upon him, the high court accepted
that Mr Nthai: (i) had
made full disclosure to the court regarding his transgressions and
correctly identified the defects of character
that led to his removal
(namely, ‘dishonesty, greed, poor judgments [
sic
]
and health conditions’); (ii) unreservedly accepted
responsibility for his unethical conduct; (iii) was deeply
remorseful;
(iv) suffered dire personal consequences as a result of
his misconduct, inasmuch as he had experienced financial hardship and
was
forced to sell his Porsche motor vehicle, five watches from his
collection of fine watches and his immovable properties in Cape
Town
and Hartbeespoort; and (v) demonstrated integrity and honesty in his
employment and interaction with others subsequent to
his removal from
the roll.
[38]
Although the parties disagree as to the consequences, the material
facts that led to Mr Nthai’s fall from
grace are not in
dispute. In Mr Nthai’s own word (in his founding affidavit in
support of the readmission application):
‘
I
then told Marcenaro that if the claimants were to pay me R5 million
into my foreign bank account, I would use my influence to
get the
Government to agree to settle the matter with each party paying its
costs. I further told Marcenaro that I had prepared
the proposal for
settlement and if the claimants agreed to pay the money, I would get
the Government to accept the settlement proposal.
He said that he
would discuss the proposal with his partners. I however, cautioned
him strongly against disclosing our discussion
to third parties.’
[39]
When Mr Marcenaro initially expressed misgivings about the amount
being solicited, Mr Nthai is recorded as having
said:
‘
You
need to understand that the only thing is that is, if we go your
route of settling, I lose. That is the problem.
…
That
is what is, what I have to weigh between the two, what do I do.
…
Most
probably after the end of the trial I will have made more than R5
million, I think.’
[40]
At a subsequent meeting, when Mr Marcenaro again expressed
reservations, Mr Nthai said:
‘
No,
I mean if it is, look it is not an easy thing, I mean to deal with. I
explained to you last time from my side that I am prepared
to close
this deal but I mean you must know I lose income, and that is the
bottom line. If it goes ahead, well I will still get
income. So …’
He
then added: ‘something must come my way. Whatever avenue. I do
not know you will do it but that I leave to you.’
[41]
At some point, Mr Nthai appears to agree with an evidently racist
assertion by Mr Marcenaro that this kind of corruption
is ‘more
African’. For good measure he then fuels that perception when
he says:
‘
Ja,
but let me tell you, let me mention something, you need [your] people
there in Italy must understand one thing, and that is
that if this
case continues it will damage, I am talking about public, it will
damage your company because you know there are a
lot of third parties
that have come in.
Oh
yes, yes.
And
they are taking a dimension that says you guys you come in this
country, you do not want to comply with the law, that is the

dimension that they are taking. They do not know about all these
nitty-gritty’s that you are telling me, the issues that
you
wanted your rights and all that. So, it is something that you have to
be, and you know, there are unions here, NUM, and all
that, you do
not need that kind of publicity and noise around your company.’
[42]
Having suggested that if the matter were to proceed it would attract
the attention of the National Union of Mineworkers,
he then alludes
to environmental non-governmental organisations in disparaging terms,
when he observes:
‘
Ja,
no, no it is with the government taking a very hard line against you.
I mean you cannot find problems. You have operations in
Zimbabwe, you
do not know how they will react. You know, I mean this thing can
affect you guys seriously, I mean that is what I
just thought. You
know when I saw some of these NGO’s coming, you know, those
people they make money by making a noise. So,
they will make a
helluva noise for you which you will not be able to deal with,
because that is how they get their funding. You
must know that for
them to maybe to raise money to enter in this case, I mean for them
it is very, very important. So, they will
make all sorts of noises
that they want to make and you will appear as if you are people who
do not understand what is going on
around you, stuff like that. I do
not think it is a good thing.’
[43]
All of this was designed to bring home to Mr Marcenaro that
continuing with the case will cause them serious reputational
harm.
The interactions between Mr Nthai and Mr Marcenaro were extraordinary
in the light of the most fundamental ethical and legal
obligations of
counsel. The fact that the conversations occurred at all is
astonishing; direct engagement between counsel and an
opposing party
is impermissible. He bypassed his own attorneys and the attorneys of
the claimants to discuss settlement of the
case directly with Mr
Marcenaro. Even more shocking was the purpose of the engagement; he
offered, in exchange for a bribe of R5m,
which he wanted paid into
his foreign bank account, to orchestrate the settlement of the
litigation on terms patently disadvantageous
to his own client.
[44]
It is difficult to imagine a more egregious transgression of the
norms of professional conduct. This was no mere
casual or momentary
lapse of judgment. It was carefully calculated and zealously pursued.
When the several meetings in this country
failed to bear fruit, Mr
Nthai travelled to Italy for the express purpose of nailing down an
agreement. He sought to persuade Mr
Marcenaro that the agreement
would be economically advantageous to them and that he would actually
lose money if there was a settlement.
Implicit in this was the
suggestion that R5 million was a bargain when compared to the costs
of a trial. When the imploring and
cajoling failed, Mr Nthai resorted
to less than subtle threats.
[45]
Over a protracted period, no thought whatever was given to his
client, the Government, or the people they represent,
the citizenry
of this country. It was a staggering breach not just of almost every
conceivable ethical duty of counsel, but also
the most basic
standards of human decency. The advocates’ profession is
founded on the principle that an advocate should
fiercely uphold his
client’s interests and further the client’s cause to the
best of his ability (subject of course
to ethical constraints and his
duty of candour to the court).
[46]
The high court accepted that Mr Nthai’s misconduct was of the
most serious sort and was deserving of significant
sanction. Indeed,
it compromised not only the interests of his client, the Government,
but also the integrity of the advocates’
profession. He pursued
personal enrichment at the expense of his client and, ultimately, the
taxpaying public. Over the course
of a number of months, he sought a
substantial bribe that would have required him to act against his
client’s interests.
And, he persisted in doing so despite an
obvious reticence by those from whom he sought the bribe.
[47]
Properly characterised, what Mr Nthai did went way beyond mere
professional misconduct. With deliberate calculation
and clear
intent, he attempted to solicit a bribe of R5 m in exchange for his
assistance, in settling the matter on terms disadvantageous
to his
client. On his own version, there is no escape from the fact that
this constituted a serious crime, for which he surprisingly
does not
appear to have been charged. Thus, given the severity of the
transgressions, Mr Nthai would have had to establish truly

exceptional circumstances to be considered for readmission.
[48]
Regrettably, there was more: The affidavit deposed to by Mr Maritz,
filed in support of the application by the
PSA for Mr Nthai’s
striking off, contained further allegations of overreaching against
him. These allegations related to
substantial amounts of money that
he had been paid by Anglo Platinum Ltd (Anglo Platinum) over an
extended period of time (the
Anglo Platinum complaint). It was
alleged that Mr Nthai had received unreasonable and unjustified
amounts of money from Anglo Platinum.
Over a period of 43 months, Mr
Nthai was paid an amount in excess of R10 million.
[49]
On 9 February 2010, the Bar Council of the PSA resolved to include
these allegations in its investigation of Mr
Nthai. The PSA requested
Mr Nthai to furnish his original fee book; diary; retainer agreements
and VAT invoices for the period
2005 to 2010. Mr Nthai refused.
Instead, he questioned the relevance of the information.
[50]
Mr Nthai has since purported to apologise for his uncooperative
behaviour and refusing to disclose relevant documents
during the
investigation into his transgressions and the proceedings before the
disciplinary committee. In his readmission application,
Mr Nthai
stated:
‘
(11)
As an officer of the Court, it was incumbent upon me to assist
the Court.
(12)
On reflection and introspection, I accept that it was disrespectful
of me not have provided this
assistance to the Court.
(13)
This is a behaviour and attitude that would not be repeated if I am
given a second chance.
(14)
I am advised that the fees earned as indicated above were reasonable
in view of the work involved.
(15)
I accept that it was improper and unethical for me to play an active
role in negotiating the
budget and retainers directly with employees
of AAP. The role I played was clearly blurred. On reflection, I fully
appreciate that
I was wrong. I have indeed learned the hard way that
at all times, it is important for counsel to always adhere to and
observe
the time ─ honoured ethical rules.’
However,
as I shall show, Mr Nthai is either guilty of deliberately
downplaying the full extent of these allegations or shows no
true
cognitive appreciation of their seriousness.
[51]
Although Mr Nthai finally acknowledged that the PSA had the
prerogative to determine the ambit of its investigation
and admitted
that he was wrong to question its request for the information sought,
when his attorney was requested to furnish information
(including
information similar to that previously sought), the latter refused.
It was indicated that Mr Nthai considered the requests
‘irregular’
and a ‘blatant fishing expedition’. Mr Nthai’s
attorney also complained that the documents
sought are ‘information
and records dating back some 14 years’.
[52]
The letter written by the JSA’s attorneys requesting the
information specifically invited Mr Nthai to obtain
the relevant
information from his attorney in the matter, Bhadrish Daya Attorneys,
Anglo American, his financial and/or tax advisors,
his bankers and/or
the auditors, tax advisor and/or brokers, in the event that the
information was not in his possession. That
request has not been
complied with and Mr Nthai has not explained why he has been unable
to comply.
[53]
Mr Nthai’s role in the Anglo Platinum matter went way beyond
that traditionally reserved for counsel. As
he described it:
‘
(9)
The work included the required:
(a)
negotiations
with AAP employees in South Africa and London and with its different
attorneys and counsel;
(b)
consultations
in the form of communities’ meetings;
(c)
identifying
farms for relocation;
(d)
negotiations
with government officials and owners of the farms, municipalities and
other stakeholders.
(10)
I was involved in preparing agreements for
relocation, construction, employment, audit, grave relocations,

township schemes, home owners’ consent, municipal services,
town planning, donation of farms agreements and many more.
(11)
The work also involved resolving complaints and disputes arising from
the audits of each household
and properties.
(12)
This required endless telephone calls, including international calls
with members of the communities,
the project team and other
stakeholders.
(13)
Meetings through video links and teleconferences were frequently
held. This was to ensure that
issues were discussed and resolved
regardless of the location where I was at any given time.’
[54]
According to Mr Nthai:
‘
42.4
(1)  I negotiated directly with employees of AAP at the highest
level the entire budget for the relocation project, including
the
unforeseen activities. The budget included items such as, payment of
compensation to community members, compensation philosophy
plowing
fields, stipends for members of the section 21 companies, payments to
contractors, professionals and many other service
providers. The
entire budget for the relocation of two communities was approximately
R800 million. I also negotiated directly with
employees of AAP the
yearly increases and renewal of the retainers.’
[55]
In a letter dated 14 June 2006, Mr Daya wrote to Anglo Platinum:
‘
Enclosed
herewith another statement for R200 000-00. I have been advised
by Advocate Seth Nthai that he had discussed this
matter with Mr R H
H Van Kerckhoven.
The
initial order was for R1.5 million and this statement together with
the two previous statements of R800 000-00 and R500 000-00

will fulfill the amount claimed in the order.’
On
16 November 2006, Mr Daya despatched the following email to Anglo
Platinum:
‘
I
would appreciate it if you could advise me, whether you have approved
the fee increment proposal for Seth.
I
have been advised by Seth that he needs a response by not later than
Friday.’
Similar
emails followed on 10 January 2007, 3 February 2007 and 5 February
2007. Those read:
‘
In
my previous e-mails I had advised as per Seth’s proposal that a
sum of R500 000-00 be deposited into my Trust account.’
…
‘
I
had a discussion with Seth and have been advised as follows regarding
the additional fees:-
1.
With regard to my request for additional fees for R3 million.
Seth
advises that he will accept the first instalment of R750 000-00
to be paid into my Trust account.
He
advises that the remainder of R2 250 000-00 should be paid
within two weeks of receiving the first instalment of R750 000.00.’
‘
I
have discussed the matter with Seth and explained your proposal for
making payment in instalments.
Seth
has agreed to same. I have already forwarded the first invoice in the
sum of R750 000-00 to Dirk Moolman at Anglo Platinum
Management
Services (Jhb).
I
would appreciate it if you could liaise with Dirk to advise him of
the agreement.’
[56]
On 02 November 2011 the attorney representing the PSA in the striking
off application wrote to Mr Daya requesting
information from him
pertaining to the Anglo Platinum matter. The next day Mr Daya
responded that he would require some time to
retrieve the files and
will thereafter forward the requested information. Almost immediately
thereafter he appeared to have a change
of heart. In a further letter
written that same day he stated:
‘
2.
Since I consider the information requested by your client to be
privileged I would require,     in my respectful

submission, permission from my clients to disclose the requested
information.
3.
I had accordingly telephonically contacted my clients to advise them
of your letter dated the 2
nd
November 2011.
4.
Clients have requested that I furnish them with a copy of your letter
under reply. Clients have also advised that since Advocate
Nthai SC
is a interested party that I also forward a copy of your letter to
him and also obtain permission from him as to whether
I can disclose
the requested information.’
[57]
In the exchange of correspondence that followed, Mr Daya clarified
that his clients are not Anglo Platinum, but
‘the communities
of Ga-Puka and Ga-Sekhoalelo based in Mokopane’. On 23 November
2011 Mr Daya wrote:
‘
6.
In the interim and to assist my clients to make a informed decision
to your clients request,
you are kindly requested furnish us with the
following information:
6.1.
The nature and purpose of your client’s enquiry relating to the
payment of fees to Advocate
Nthai;
6.2.
Whether your client has requested the
information it requires directly from Advocate Nthai;
6.3.
The manner in which your clients have obtained the various tax
invoices and that copies of all
the tax invoices in your possession
be forwarded to our offices.’
[58]
Eventually, on 28 November 2011 Mr Daya wrote:
‘
5.
Although I fully understand your
client’s obligation to pursue its investigation against

Advocate Seth Nthai, as a attorney I also have a obligation to
furnish any correspondence that you submit to me, to my client for

further instructions. You will no doubt agree that I am duty bound to
act on my client’s instructions.
6.
I furthermore note your client’s reluctance to divulge the
manner in which
it has obtained the document/s in question. The
documents in question, are in my respectful submission privileged
documents and
your client has an obligation to disclose the manner in
which it has obtained same.
7.
As you will note from my letter dated the 03
rd
November 2011, I had indicated from inception that personally and
professionally I have no objections in furnishing the requested

information. I am however as the attorney duty bound to follow and
comply with my client’s instructions.’
[59]
It is unclear on what basis privilege was asserted. But, it is not
necessary to enter into that question, because
it remained for Mr
Nthai to explain his conduct. His explanation, such as it is, is
wholly unsatisfactory. It was for him to take
the court fully into
his confidence. He failed to do so. The allegations pertaining to Mr
Nthai’s conduct in the Anglo Platinum
matter still hang over
his head. His uncooperative attitude on this score is concerning. His
persistent refusal to disclose relevant
documents and to give a full
account concerning the allegations against him are not the actions of
a reformed person.
[60]
Importantly, the allegations in the Anglo Platinum complaint go
beyond merely overreaching. Mr Nthai acted for
the communities whilst
he was paid by Anglo Platinum. This constitutes a clear conflict of
interest. It is in a sense similar to
Mr Nthai’s conduct when,
whilst acting for the Government, he sought to cooperate with Mr
Marcenaro and to be corruptly compensated
by him.
[61]
Regardless of Mr Nthai’s failure to address the full details of
the allegations of overreaching and conflict
of interest, the high
court found that the claims of overreaching were part of the original
application for Mr Nthai’s striking
off. The high court also
found that he did not file an answering affidavit in the application
because he realised that ‘he
deserved to be punished due to the
serious nature of his indiscretions’.
[62]
I have dwelt on this aspect, because it seems to me that the high
court failed entirely to appreciate the full
import of the
transgression. This rendered it far too receptive to Mr Nthai’s
explanation. At the time our law recognised
a divided profession
coupled with a referral system
[38]
and
that, at least in regard to the conduct of litigation, an advocate
misconducts himself if he acts without the intervention of
an
attorney.
[39]
[63]
Our courts have generally affirmed that it is in the public interest
that there should be an independent Bar whose
members ‘in
general do not perform administrative and preparatory work in
litigation but concentrate their skills on the
craft of forensic
practice.’
[40]
In
In
re: Rome
,
in outlining the points of distinction between the two branches of
the profession, Corbett CJ said:
‘
The
advocate is, broadly speaking, the specialist in forensic skills and
in giving expert advice on legal matters, whereas
the attorney
has more general skills and is often, in addition, qualified in
conveyance and notarial practice. The attorney has
direct links
(often of a permanent or long-standing nature), with the lay client
seeking legal assistance or advice and, where
necessary or expedient,
the attorney briefs an advocate on behalf of his client. The advocate
has no direct links or long­standing
relationship with the lay
client: he only acts for the client on brief in a particular matter
and is normally precluded by Bar
rules from accepting professional
work direct from the client. The attorney is responsible to the
advocate for the payment of professional
fees due to the latter by
the client and for the recovery of these and his own fees and
disbursements from the client: The advocate
has no direct financial
dealings with the client.’
[41]
[64]
Likewise, in
Rösemann
v General Council of the Bar of South Africa
,
[42]
Heher
JA had this to say:
‘
At
this point the referral rule and its implications … become
significant. An advocate in general takes work only through
the
instructions of an attorney. The rule is not a pointless formality or
an obstacle to efficient professional practice, nor is
it a
protective trade practice designed to benefit the advocacy. The rule
requires that an attorney initiates the contact between
an advocate
and his client, negotiates about and receives fees from the client
(on his own behalf and that of the advocate), instructs
the advocate
specifically in relation to each matter affecting the client’s
interest (other than the way in which the advocate
is to carry out
his professional duties), oversees each step advised or taken by the
advocate, keeps the client informed, is present
as far as reasonably
possible during interaction between the client and the advocate, may
advise the client to take or not take
counsel’s advice,
administers legal proceedings and controls and directs settlement
negotiations in communication with his
client. An advocate, by
contrast, generally does not take instructions directly from his
client, does not report directly or account
to the client, does not
handle the money (or cheques) of his client or of the opposite party,
acts only in terms of instructions
given to him by the attorney in
relation to matters which fall within the accepted skills and
practices of his profession and,
therefore, does not sign, serve or
file documents, notices or pleadings on behalf of his client or
receive such from the opposing
party or his legal representative
unless there is a Rule of Court or established rule of practice to
that effect (which is the
case with certain High Court pleadings but
finds no equivalent in magistrates’ court practice). The
advocate does not communicate
directly with any other person, save
opposing legal representatives, on his client’s behalf (unless
briefed to make representations),
does not perform those professional
or administrative functions which are carried out by an attorney in
or from his office, does
not engage in negotiating liability for or
the amount of security for costs or contributions towards costs or
terms of settlement
except with his opposing legal representative and
then only subject to the approval of his instructing attorney. (This
catalogue
does not purport to be all-embracing. It is intended only
to illustrate the sharpness of the divide and to point the answer to
other debates on the same subject.)
[65]
In a separate judgment in
Rösemann,
Streicher JA pointed
out:
‘…
It follows,
furthermore, on the other hand, that to allow advocates to accept
instructions by attorneys to conduct litigation on
behalf of a client
from beginning to end, ie to do all the administrative and
preparatory work in respect of litigation, would
not serve the public
interest and would constitute an abuse of the referral practice.
The
instructions relied upon by the appellant were to do all the
administrative and preparatory work normally done by an attorney.
I,
therefore, agree with the court
a
quo
that
the instructions were not proper instructions and that they should
not have been accepted by the appellant.’
[43]
[66]
Needless to say, fees charged by an advocate must be reasonable. One
who charges an unreasonable fee, is guilty
of overcharging or
overreaching.
[44]
Overreaching
involves an abuse of a person’s status as an advocate, by
taking advantage for personal gain of the person paying.
[45]
For
an advocate to take advantage of that situation by marking a fee
knowing that it is not a proper fee, but one that is unreasonable
and
improperly marked under the rules, is an abuse of the advocate’s
position and amounts to overreaching.
[46]
As
it was put in
Society
of Advocates of South Africa (Witwatersrand Division) v Cigler
:
‘… the charging of excessive fees is not only a breach
of the Rules but is also a matter of serious concern’.
[47]
[67]
Mr Nthai explained, but only in general terms, the nature of the work
that he performed in return for his fees.
It
would be incumbent upon an advocate who is alleged to have charged
excessive fees to provide sufficient detail of the work that
was
performed to enable the fee to be assessed.
[48]
I
think that much of the difficulties relating to the fees arose
because Mr Nthai acted without proper instructions in the matter.
It
is true that he had an attorney in the form of Mr Daya, but Mr Daya
appears to have been no more than a nominal attorney.
As
I have pointed out, an advocate may in general not act other than on
the instructions of an attorney and by that I do not mean
a nominal
attorney. Had Mr Nthai been properly instructed, he would no doubt
have been held to account by his attorney for the
fees that he
charged. In that event, it would have been necessary for him to have:
(i) recorded his fees in the usual fashion;
(ii) marked his briefs
with the work done and the fee relevant to such work; (iii) submitted
accounts that would have been subject
to scrutiny by his attorney;
and (iv) no doubt, received payment in the more conventional way.
[68]
In summary, therefore, the evidence discloses that Mr Nthai had acted
in conflict with the duties of an advocate
in various respects. He
marked fees and received payment other than in the conventional way,
which was a consequence of him having
acted without proper
instructions. He associated himself with a mandate that was
detrimental to the reputation of the profession.
And, in executing
the mandate he lent himself to what, at the very least, had the
potential for fraud.
[69]
Unlike his admission to the misconduct based on the bribery and
corruption, Mr Nthai has not admitted the allegations
of
overreaching. Given his denials, his refusal to provide the
underlying documents is concerning. Similarly, in
Johannesburg
Society of Advocates v Edeling,
[49]
Mr
Edeling did not voluntarily disclose certain information relevant to
his readmission as an advocate. He only did so after the
JSA had
raised specific concerns about the information that he had provided
in his application. This court found that Mr Edeling’s
failure
to disclose matters relevant to the question of his readmission
undermined his assertion that he had genuinely, entirely
and
permanently reformed. And, that he could not be trusted to carry out
the duties of an advocate in a satisfactory way as far
as members of
the public are concerned.
[50]
The
same must apply to Mr Nthai.
[70]
It is no small matter for an advocate to disregard the rules of his
professional body and the authorities that
I have referred to
illustrate the seriousness with which such conduct is viewed by the
courts. Here, it is impossible to avoid
the conclusion that Mr Nthai
was a party to a relationship or an understanding between himself and
the firm of attorneys, in terms
of which he: was free to perform acts
whether or not those were ordinarily performed by advocates; would
not debit the attorneys
for his work as and when the work was
performed; and, would charge a composite fee irrespective of whether
or not such fee was
reasonable. The high court failed to recognise,
as the full court emphasised in
Society of Advocates of South
Africa (Witwatersrand Division) v Cigler
that:
‘
The
fact that an advocate has breached the Rules of the Society, even in
isolated instances, may very well be relevant to the Court's
decision
as to whether he is a fit and proper person to practise as an
advocate, and so is a finding whether he treats the Rules
of the
Society with respect or with contempt. Breaches of the Rules, as I
have indicated, may cause an injustice and even an unfair
trial. It
is for these reasons that Courts have in the past always assisted
Societies of Advocates in upholding and enforcing their
Rules.’
[51]
[71]
In readmitting Mr Nthai, the high court placed particular emphasis on
Mr Nthai’s mental health at the time
of the misconduct. Mr
Nthai had placed evidence before the court to the effect that he had
been suffering from depression. This,
the court held, contributed
significantly to and was the only rational explanation for Mr Nthai’s
misconduct. According to
the court, it also explained his failure to
participate in the disciplinary proceedings. The high court concluded
that the fact
that Mr Nthai was unwell at the time is the only thing
that could ‘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.’.
[72]
The high court considered the medical evidence concerning the role of
anxiety and depression in Mr Nthai’s
transgressions to be an
overwhelming factor in favour of his readmission. It held that ‘it
is easy for one to conclude that
Nthai’s health condition
played a significant role in his deviant and irrational behaviour’.
In that regard, it placed
reliance on the medical reports of Dr
Williamson, a psychiatrist, and Prof Wolff, a clinical psychologist.
The court considered
this to be ‘powerful evidence in support
of Nthai’s case’. The court further held that Mr Nthai
had ‘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’.
[73]
However, in making these findings, the court went beyond what the
evidence reasonably justified. Neither of the
health professionals
who saw Mr Nthai, definitively concluded that depression caused or
explained his misconduct. Both merely suggested
that depression could
have impaired his judgment and thus contributed to his misconduct.
[74]
The medical evidence also appeared to have satisfied the high court
that Mr Nthai would not repeat his transgressions.
The court found
that ‘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.’
[75]
It is clear that the high court misconstrued the evidence of Prof
Wolff and Dr Williamson. Prof Wolff’s evidence
was to the
following effect: Mr Nthai was a patient of Prof Wolff’s
practice since 2 April 2009 (which was before the date
of his
transgressions). Prof Wolff provided Mr Nthai with cognitive
behavioural psychotherapy between 2 April 2009 and 12 May 2009
‘when
his depression and anxiety had improved significantly, and he was
asymptomatic.’ In February 2010, Mr Nthai returned
to the
practice complaining of depression and indicating that in
October/November 2009 he had committed the transgressions and
become
more depressed, when he was mentioned in a negative light in the
media. Prof Wolff found that, after his transgression became
public,
Mr Nthai had become severely depressed and sought treatment. Prof
Wolff says that the severity of Mr Nthai’s depression
‘was
such that it could only have been caused by the events described by
him above, especially his depression and anxiety
dating back from
1995’. He concurred with Dr Williamson’s conclusion that
Mr Nthai’s condition could not have
developed over a short
period of time. He concluded that there is no reason (to him as a
medical practitioner) why Mr Nthai should
not be reinstated in his
previous professional role as an advocate on the basis that he was
asymptomatic for depression, when he
was re-examined in August 2018.
[76]
Dr Williamson’s evidence was that she had treated Mr Nthai
after he had been referred to her by Prof Wolff
on 2 February 2010.
Mr Nthai described to Dr Williamson the incident in October/November
2009, which resulted in his name being
removed from the roll of
advocates. He alluded to the media coverage and the shame he felt at
his actions, which also affected
his late wife and children. Mr Nthai
was unable to give Dr Williamson a rational basis for his actions. He
had reported to Dr Williamson
a long-standing history of intermittent
depression and anxiety dating back to 1995, for which he had received
treatment over the
years. At the time when Dr Williamson first saw Mr
Nthai, he was clearly very depressed.
[77]
Dr Williamson concluded that:
‘
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 of 2009 that lead
to his disbarment.
She
concluded that:
·
Mr
Nthai is not suffering from depression at present
·
He
may have been depressed at the time of his irrational professional
transgressions in October/November 2009 which could then have

influenced his insight and judgment.
·
Affording
Mr Nthai a second chance, by re-admitting him to the Role of
Advocates would contribute to his self-esteem and restore
his
dignity.’ [emphasis added]
[78]
This represents the high-water mark of the medical evidence. Ignoring
some of the rather speculative hypotheses
advanced by the medical
professionals, what emerges is that Mr Nthai had suffered from
depression and anxiety in the past, and
it appeared to them that the
anxiety and depression may have played some role in his
transgressions. Neither of the experts went
so far as to aver
positively that depression or anxiety was the primary, or for that
matter even a contributing factor to the transgressions.
[79]
Yet the high court held that his condition provides a full
explanation for Mr Nthai’s transgressions. However,
neither
witness went so far as to suggest that it was the depression and
anxiety that contributed to a lack of honesty, which marked
his
scheme, pursued vigorously over several months. Nor that without
depression and anxiety, Mr Nthai would not have transgressed.
Much
more by way of evidence would have been required to justify the
findings of the high court.
[80]
In the absence of such evidence, it is not possible to conclude that
Mr Nthai is not a person inherently prone
to dishonesty or the fact
that he is currently asymptomatic for depression and anxiety means
that he is not at risk of similar
transgressions in the future. On
the contrary, because of the equivocal and limited nature of the
medical evidence about the causal
relationship between his condition
and the transgressions, the high court could not justifiably have
concluded that there is any
assurance that the character flaws which
resulted in the transgressions – in particular dishonesty and
greed – will
not recur if he is readmitted to practice.
[81]
As a result, neither the psychiatrist, psychologist nor the high
court genuinely came to grips with what patently
was a significant
contributing factor, namely, Mr Nthai’s greed and dishonesty.
The anxiety and depression, such as it is,
hardly explains his clear
goal directed behaviour over a protracted period. Nor can it mitigate
the dishonesty. It follows that
neither of the health professionals
could (or did) conclude definitively that Mr Nthai was depressed at
the time of his misconduct
or that a causal nexus existed between the
two. Mr Nthai himself conceded that he was ‘unable, as lay
person, to link the
incident to the illness’.
[82]
While Mr Nthai makes the bare allegation that he accepts that greed
and dishonesty played a role in his transgressions, and
that he has
reflected upon and repented for these character flaws, his reliance
on depression and anxiety as a contributory factor
obscures the fact
that Mr Nthai has not properly come to grips with the real elements
of his transgressions and of his inherent
character flaw. As it was
pointed out in
S v Matyityi
:
‘
There
is, moreover, a chasm between regret and remorse.
Many
accused persons might well regret their conduct, but that does not
without more translate to genuine remorse.
Remorse
is a gnawing pain of conscience for the plight of another. Thus
genuine contrition can only come from an appreciation and

acknowledgement of the extent of one’s error.
Whether
the offender is sincerely remorseful, and not simply feeling sorry
for himself or herself at having been caught, is a factual
question.
It is to the surrounding actions of the accused, rather than what he
says in court that one should rather look.
In
order for the remorse to be a valid consideration, the penitence must
be sincere and the accused must take the court fully into
his or her
confidence.
Until
and unless that happens, the genuineness of the contrition alleged to
exist cannot be determined. After all, before a court
can find that
an accused person is genuinely remorseful, it needs to have a proper
appreciation of, inter alia: what motivated
the accused to commit the
deed; what has since provoked his or her change of heart; and whether
he or she does indeed have a true
appreciation of the consequences of
those actions. There is no indication that any of this, all of which
was peculiarly within
the respondent's knowledge, was explored in
this case.’
[52]
Although
stated of an accused person in the context of criminal proceedings,
those considerations apply no less in this context.
[83]
It was for Mr Nthai to demonstrate by means of clear and convincing
evidence that he has grappled with the nature
and degree of his
transgressions, and that he has indeed reformed and that he is now a
fit and proper person.
[53]
The
question is not whether he has been punished enough.
[54]
It
is rather whether he is a person who can safely be trusted to
faithfully discharge all of the duties and obligations relating
to
the profession of an advocate. In readmitting Mr Nthai, the high
court emphasised the importance of the PSA, the JSA and the
LPC
finding it ‘in their hearts to forgive Nthai’ and in that
regard made reference to a sermon delivered by Dr Martin
Luther King
Jr emphasising the importance of the capacity of forgiveness.
[84]
The high court also gave considerable weight to the devastating
impact of the media publicity on Mr Nthai and his
family and the fact
that his transgressions were made public. It accordingly concluded
that Mr Nthai had been sufficiently punished
for his transgressions.
In the view of the high court the case was about whether Mr Nthai
should be given a second chance. To focus
on forgiveness and whether
Mr Nthai had been sufficiently punished, as the high court did, is to
fundamentally misconceive the
nature of the enquiry.
[85]
As long ago as
Law Society v Du Toit
1938 OPD 103
, it was said
in regard to an application for the removal of an attorney:
'The
proceedings are instituted by the Law Society for the definite
purpose of maintaining the integrity, dignity and respect the
public
must have for officers of this court. The proceedings are of a purely
disciplinary nature; they are not intended to act
as punishment of
the respondent… It is for the courts in cases of this nature
to be careful to distinguish between justice
and mercy. An attorney
fulfils a very important function in the work of the court. The
public are entitled to demand that a court
should see to it that
officers of the court do their work in a manner above suspicion. If
we were to overlook misconduct on the
part of officers of the court,
if we were to allow our desire to be merciful to overrule our sense
of duty to the public and our
sense of importance attaching to the
integrity of the profession, we should soon get into a position where
the profession would
be prejudiced and brought into discredit.'
This
statement has been quoted and followed in a number of subsequent
cases and, although it deals with an attorney, it is equally

applicable to the case of an advocate.
[55]
[86]
Mr Nthai’s application was accompanied by affidavits from no
less than five persons who attested to his rehabilitation.
He also
detailed his employment and business ventures subsequent to his
removal from the roll. The high court placed great store
by the
evidence, especially that of Advocate George Bizos SC. It quoted from
the affidavit of Mr Bizos, to the following effect:
‘
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 and Constitutional Committee of the African
National Congress (ANC). 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 Nuremberg 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 allegations of his transgressions first surfaced, they were
met with disbelief 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 practicing advocates had
left a void which was difficult fill.
9.
I therefore support his application for re-admission’.
[87]
The high court criticised the PSA for trying ‘to downplay the
significance of the Mr Bizos’s support
for Nthai’s
application’. It suggested, ‘[t]his, in our view, is an
attack upon the integrity of an eminent jurist,
such as Mr
Bizos’.
[56]
In that, the
high court misconstrued the contention advanced on behalf of the PSA.
Consequently, it did not engage with the gist
of the argument, which
was articulated thus by Wallis JA in
Edeling’s
case:
‘
Most
of the references were unhelpful and meaningless, because all they
did was paint a favourable picture of Mr Edeling, without
indicating
the extent of their knowledge of Mr Edeling’s wrongdoings or
whether they knew about the personality traits or
character defects
which gave rise to his misdeeds and led to his striking off. None
referred to the fact that dishonesty lay at
the root of the decision
to strike him from the roll of advocates. In regard to similar
character references, Wessels JP said in
Ex
parte Wilcocks
:
“
It
is not sufficient to produce before the court a few certificates from
interested friends or to say that he has led an honest
life. The
evidence with regard to that must be overwhelming: the court must be
satisfied that it will make no mistake if it reinstates
the
applicant.”’
[57]
It
follows that the high court could not, without more, on the strength
of the character references have been satisfied that ‘it
will
make no mistake’ in readmitting Mr Nthai.
[88]
There are, moreover, a number of telling instances where Mr Nthai’s
conduct post-removal has demonstrated
that he is fundamentally
ill-suited to a profession based on integrity, candour and honesty.
In his founding affidavit in support
of his readmission application,
Mr Nthai observed:
‘
My
initial reaction to the investigation by the Pretoria Bar Council and
the inquiry by the DC was unhelpful. I felt that the manner
in which
the investigation by the Pretoria bar Council was conducted was
unfair, my attitude was misguided and wrong.’
[89]
However, what Mr Nthai somewhat euphemistically described as
‘misguided and wrong’ continues to characterise
his
behaviour. Instead of inviting rigorous scrutiny of his application
by the very parties who had conducted the disciplinary
proceedings
and brought the striking off application, he has endeavoured to
exclude them from the proceedings. Mr Nthai contested
the standing of
the JSA and the PSA in his application for readmission. This despite
him having said that he ‘felt ethically
duty bound to bring the
application to the attention of both Bars’ and that he
understood that they had an interest in his
readmission.
Contradictorily, he later denied the existence of the JSA and the PSA
because ‘the new South African Legal Practice
Council has now
been established in terms of the
Legal Practice Act with
oversight
regulatory powers to all legal practitioners, including advocates’.
[90]
In the same breath though he recognised the existence of POLSA and
stated that the role of
custos
morum
resided
only with them. Of course, POLSA supported the readmission
application. Why the application was supported has not been
explained. POLSA has a duty to ensure that persons who are enrolled
as advocates are persons of dignity, honour and integrity. In

supporting Mr Nthai’s readmission application POLSA appears to
have failed in that duty.
[91]
After both the JSA and the PSA had resolved to intervene in the
readmission application, Mr Nthai refused to accede
to their request
for a postponement. And, in opposing the application for leave to
intervene, Mr Nthai asserted: ‘Simply
put, this court is called
upon to determine whether I am fit and proper person to be readmitted
as an advocate. The burden of proof
rests on me and no one else’.
[92]
Mr Nthai also strongly opposed the JSA’s application for leave
to appeal and the GCB’s application
to intervene. He expressed
the following view:
‘
Given
the nature and effect of the judgment and order of the Court, and
particularly the fact that the respondents’ prospects
of
success on appeal are non-existent, I was justified in concluding
that it was unthinkable for any of the respondents to lodge
an
application for leave to appeal.’
He
added:
‘
[T]he
application for leave to appeal is intended merely to harass,
frustrate and drain me emotionally and financially. The intention
is
to drag and delay my return to practice law so that I would
ultimately give up.’
Insofar
as the GCB was concerned, he stated:
‘
The
GCB’s insistence on its continued regulatory role or as
custos
morum
will, with respect always remain a pipe dream … It is clear
that the GCB intends to use my case to try to achieve the outcome

which it lost at the legislative altar’.
This
is hardly the conduct of a self-effacing, reformed individual, who is
open to the scrutiny of a court, aided and assisted by
the facts and
arguments that the professional bodies were uniquely positioned to
place before it.
[93]
What is more, after leave to appeal had been granted by this court
and despite the fact that an appeal was pending
against his
readmission and the enforcement order, Mr Nthai started to accept
briefs. In terms of
section 18(4)(iv)
of the
Superior Courts Act, the
enforcement order of the high court was ‘automatically
suspended’ pending the outcome of the appeal of that order.
He
also continued using the appellation ‘SC’, thereby
holding himself out as a senior counsel. Mr Nthai did so ostensibly

because an application had been filed by him with the registrar of
this court in terms of
s 17(2)
(f)
of
the
Superior Courts Act for
a reconsideration of this court’s
decision to grant leave to appeal against the readmission order. I
pause to record that
it seems to me that
s 17(2)
(f)
entitles
the President of this court to refer a matter for reconsideration
only where leave to appeal is refused and that it therefore
could not
have been invoked in a case such as this, to reverse the decision of
the court where leave to appeal had been granted.
Mr Nthai’s s
17(2) application was ultimately dismissed with costs by the
President of this court on 20 June 2020.
[94]
Whilst the
s 17(2)
application was pending, however, in February 2020
it was brought to the GCB’s attention that Mr Nthai was
scheduled to appear
in the Constitutional Court on behalf of the
Minister of Home Affairs. After seeking unsuccessfully to obtain Mr
Nthai’s
undertaking that, pending finalisation of the appeals,
he would withdraw from all matters in which he was engaged, the GCB
was
forced to point out to the registrar of the Constitutional Court
that he was not entitled to appear before that court in the matter.

Mr Nthai’s instruction in the matter was terminated, in
consequence of the GCB’s letter to the registrar, and the
registrar’s subsequent letter to his instructing attorney, the
State Attorney. The response from the State Attorney to the
registrar
was: ‘we thank you for bringing the developments in Mr Nthai’s
litigation to our attention’. It may
reasonably be inferred
from that statement that Mr Nthai had failed to advise the State
Attorney, when briefed, that he was not
eligible to practise pending
the appeals.
[95]
Despite this incident, Mr Nthai continued to act in a further brief
for the Minister of Home Affairs in the Western
Cape High Court. On
20 April 2020 Mr Nthai’s attorney was reminded that he was not
entitled to continue practicing before
the termination of the
appeals. His attorney, once again, disputed that it was necessary for
him to stop practicing. Consequently,
the registrar of that court had
to be notified, whereafter he came to be replaced as counsel.
[96]
The view of Mr Nthai’s attorney was:
‘
Our
client takes strong exception to the opportunistic and unilateral
approach of the GCB to the CC … [T]he GCB failed to
disclose
the fact that our client has lodged an application for
reconsideration of the SCA orders in terms of
section 17(2)
(f)
…
and accordingly such orders have been suspended in their operation.’
For
that reason as well, the attorney took the view that the filing of
the practice note and heads of argument by the JSA and the
GCB was
‘premature and improper’. She contended that, until Mr
Nthai’s s 17(2)
(f)
application
had been determined, ‘none of the parties are entitled to take
a further step in the prosecution of the [appeal]’.
[97]
What this demonstrates is an obstructive attitude on the part of Mr
Nthai, aimed at preventing proper scrutiny
of his readmission; hardly
that of a reformed person who deserves readmission. His persistence
in turning his back on the
truth, gratuitous insults and
intemperate language constitutes evidence that since his striking off
he has developed no insight
and no greater perception of what
is expected of him. This, it seems to me, is a defect of
character which, going forward,
is hardly likely to be
ameliorated.
[98]
In the words of
Swartzberg
,
Mr Nthai ‘did not succumb to a sudden temptation and his fall
from grace was not in consequence of an isolated act. His
was
deliberate and persistent dishonesty for personal financial gain over
a protracted period’.
[58]
Where,
as here, an applicant for readmission has demonstrated a propensity
for inherent dishonesty, ‘his prospects of being
readmitted to
what after all is an honourable profession, will be very slim indeed.
Only in the most exceptional of circumstances,
where he has worked to
expiate the results of his conduct and to satisfy the court that he
has changed completely, will a court
consider readmission at
all.’
[59]
Mr
Nthai has not demonstrated such exceptional circumstances.
[99]
It follows that the high court failed to apply the appropriate test.
It did not find exceptional circumstances
of the kind required by
this court in
Swartzberg
.
Instead, the high court prioritised the consequences Mr Nthai had to
endure after his misconduct came to light.
[100]
I now turn to the appeal against the
s 18
order, in terms of which Mr
Nthai’s readmission was to operate and be executed pending the
outcome of any future appeals.
[101]
Given that the
s 18
appeal is being heard together with the main
appeal, the JSA accepts that the appeal against the
s 18
order will
have no practical effect. This is so because if the main appeal
fails, Mr Nthai will be entitled to practice going forward.

Contrarily, if the main appeal succeeds, he will not be entitled to
practice. That notwithstanding, it is nevertheless necessary
to
observe that the high court erred in granting the
s 18
order.
[102]
This court explained in
University
of the Free State v Afriforum
[60]
that
s 18
‘places a heavy onus on the applicant’ as ‘the
granting of relief of this nature constitutes an extraordinary

deviation from the norm that, pending an appeal, a judgment and its
attendant orders are suspended.’
[61]
Section
18
does not seek merely to codify the common law but to ‘introduce
more onerous requirements’.
[62]
And,
the interim enforcement of court orders constitutes an ‘extraordinary
deviation from the norm’ and thus requires
‘the existence
of truly exceptional circumstances to justify the deviation’.
Exceptional circumstances entail ‘something
out of the ordinary
and of an unusual nature; … in the sense that the general rule
does not apply to it; [and] something
uncommon, rare or
different’.
[63]
[103]
The circumstances relied upon by the high court in granting the
enforcement order were not extraordinary, markedly unusual
or
specially different. It was contended before the high court that the
s 18
application should not succeed because of the irreparable harm
that would be inflicted on the public if Mr Nthai commenced
practising
and this court on appeal overturned the order to readmit
him. The public and the legal profession would then be faced with a
situation
where for that period, Mr Nthai would have been accepting
briefs, conducting legal work and appearing in courts in
circumstances
where it would ultimately have been found that the
decision to readmit him does not survive scrutiny.
[104]
Before a court can grant such order, it must also be satisfied that
the party seeking the order has proved, on a balance of

probabilities, that he will suffer irreparable harm if the order is
not granted, and that his opponent will not suffer such harm
in
consequence of interim enforcement.
[64]
Mr
Nthai’s s 18 application did not meet these requirements. He
was at no risk of such harm. It is so that he may have been

inconvenienced if he was prevented from commencing practice pending
finalisation of the appeal. But this is an ordinary and unavoidable

incident of the appeal process.
[105]
The high court relied on the fact that Mr Nthai had already taken up
chambers, paid his Bar fees, commenced lecturing pupils
and had been
briefed in various complex matters. But these circumstances are not
exceptional in any sense. They were of Mr Nthai’s
own making.
He took these steps despite being fully aware of the normal rule that
court decisions are suspended pending an appeal.
If these were
exceptional circumstances, any candidate for interim enforcement
could abruptly take irreversible steps to ensure
that the test in
s
18
is met.
[106]
The high court held that Mr Nthai ‘undertook not to practise …
and observed his undertaking … despite
the fact that he was
admitted to practise as an advocate in both Lesotho and
Botswana’.
[65]
This
meant, the court stated, that he could be trusted to cease practice
if an appeal was successful. And, it held that Mr Nthai
had
demonstrated personal integrity and scrupulous honesty subsequent to
his misconduct.
[66]
I have
demonstrated that this is not so. Further, Mr Nthai’s
resignation on the eve of his disciplinary hearing was an act
of
self-preservation, designed to avoid scrutiny and culpability. It was
not the act of a trustworthy man. But even if he were
demonstrably
trustworthy, this would not constitute exceptional circumstances. The
test is not whether the ultimate appeal order
would be complied with,
as the high court appears to suggest, but whether exceptional
circumstances exist that warrant enforcement
pending the appeal.
[107]
If anything, it was the GCB and its constituent Bars that faced the
threat of irreparable harm if the enforcement order was
granted and
the appeal subsequently upheld. The admission and practice, even if
temporarily, of a person who is not fit and proper
to practice can
cause irreparable reputational damage to the advocates’
profession and real harm to members of the public.
In my view, the
high court should have concluded, after weighing the respective
interests of the parties,
[67]
that
the readmission judgment should not be enforced pending an appeal.
[108]
It remains to consider the applications for the PSA to be joined as
an appellant and the GCB and the JSA to adduce further
evidence, both
of which have been opposed by Mr Nthai. On 20 May 2020 the PSA
applied for leave to be joined as the third appellant
in the appeal.
Although the PSA had sought and previously obtained leave to
intervene and was subsequently joined as the first
respondent in the
high court, it did not seek leave to appeal the judgment of the high
court. Mr Ellis, explained on behalf of
the PSA:
‘
3.2.1
The Bar Council of the PSA adopted a resolution on 11 June 2019 not
to pursue an application for leave to appeal
the judgment and order
that was made by the Court
a
quo
on
24 May 2019.
3.2.2
The general membership of the PSA did not support the Bar Council’s
aforementioned decision and a
special general meeting was convened on
17 October 2019, during which a resolution was adopted to pursue the
matter and to assist
the SCA in this regard.’
[109]
The PSA contends that it is duty-bound to apply to this court for
leave to be joined as the third appellant so as to enable
it to
become actively involved in the appeal and to assist the court in the
adjudication of the matter. The PSA did not furnish
an explanation
for the delay from 17 October 2019, when the resolution was adopted,
until the application was filed with this court.
It was also late in
filing its replying affidavit. Mr Ellis deposed to the replying
affidavit on 16 July 2020. However, the replying
affidavit together
with PSA’s practice note and heads of argument only came to be
filed with the registrar of this court
on 26 October 2020, some four
court days before the hearing of the appeal. In addition, the issues
that it sought to canvas have
been comprehensively dealt with by the
GCB and the JSA. In the circumstances, the PSA’s participation
adds nothing new. I
would accordingly dismiss the application.
[110]
On 22 September 2020 the JSA and the GCB applied, in terms of
s 19
(b)
of the
Superior Courts Act, for
leave to adduce further evidence in
the appeals. The evidence, which only saw the light of day after the
finalisation of the matter
in the high court, may be summarised as
follows: In an application for condonation filed in June 2020, in
support of an unfair
dismissal claim before the CCMA against Mr
Nthai, his former secretary, Ms Marietjie Jansen van Vuuren, alleged
that he continued
to practice law after his striking off. Ms Jansen
van Vuuren set out in fair detail some of the legal work performed by
Mr Nthai,
along with supporting annexures.
[111]
It appeared from the annexures that Mr Nthai prepared opinions
together with Advocate Sophia Masimene. In addition, it seemed
that
he had drafted letters to be placed on the letterhead of Bhadrish
Daya Attorneys, to thereafter be sent to clients. Ms Jansen
van
Vuuren also alleged that Ms Masimene split her fees with Mr Nthai. Mr
Nthai denied the allegations, which he described as ‘defamatory

and scandalous’. Mr Nthai suggested that Ms Masimene had
considered him a mentor and that it was in this capacity that he

rendered assistance to her ‘over the years, and on various
occasions’, for no payment. In his affidavit before the
CCMA,
Mr Nthai did not deal fully with the specific examples cited by Ms
Jansen van Vuuren or the annexures to her affidavit.
[112]
When these allegations came to the attention of the GCB and the JSA,
Mr Nthai was asked for an explanation. He adopted the
stance that he
is ‘not prepared to entertain false, untrue and defamatory
allegations’. In opposing the application
to adduce further
evidence, Mr Nthai correctly pointed out that the CCMA had found Ms
Jansen van Vuuren to be untruthful and her
evidence not to be
credible. He was also correct in stating that there are, on the face
of it, certain disputes of fact.
[113]
Mr Nthai went on to describe the request by the JSA and the GCB as a
‘fishing expedition’ and the application
for leave to
adduce further evidence as ‘an abuse of court process’,
asserting that ‘the relevance of the confidential
emails
between Adv Masimene and I “
from 1 January 2018”
is highly questionable’.  He added:
‘
36.4
In in any event, the issue of locus standi of both the GCB and JSA
looms large. It goes into the legal authority
of the GCB and JSA to
demand confidential financial records for this from me…
37.3
The letters addressed to the State Attorneys demonstrate the
desperation on the part of the GCB and
JSA and an exercise in
futility. All the efforts came to naught.’
[114]
But, despite questions around Ms Jansen van Vuuren’s
credibility and the potential disputes of fact, by his own admission,

Mr Nthai assisted Ms Masimene with various opinions. Indeed, his
handwritten notes disclosed by Ms Jansen van Vuuren, suggest that
he
was to an appreciable degree responsible for drafting significant
parts of those opinions. In certain instances his handwritten
notes,
to the word (grammatical and spelling errors included), came to be
incorporated into Ms Masimene’s opinions. In correspondence

addressed to Ms Jansen van Vuuren he also suggested that he ‘worked
on’ opinions with Ms Masimene. And, once again
by his own
admission, Mr Nthai engaged in ‘referral mining consultancy
work’ with Bhadraish Daya Attorneys.
[115]
It is so that in appropriate cases, cross-examination might be
required to establish the true facts. This might well be such
a case.
However, notwithstanding the troubling nature of the allegations, I
prefer to pass over them. For, it seems to me that
the matter can be
decided without resort to the further evidence. As should be
perfectly plain, on the evidence that served before
the high court,
the appeal must succeed. In that sense the further evidence will not
alter the outcome and, strictly speaking,
amounts to mere surplusage.
I would accordingly refuse the application to adduce further
evidence.
[116]
Finally, Mr Nthai apprehended that he would be prosecuted. According
to Mr Maritz:
‘
10.2.
On 25 March 2010 and shortly before the scheduled time for the
commencement of the disciplinary hearing, I met
Advocate I A M
Semenya SC, who was in the company of Mr Manaka, the respondent’s
attorney.
10.3.
Advocate Semenya SC engaged me in conversation outside the
arbitration venue at Circle Chambers, Brooklyn,
Pretoria away from
his instructing attorney Mr Manaka. Advocate Semenya SC indicated to
me that the respondent was prepared to
plead guilty to unspecified
unprofessional conduct and submit to the termination of his
membership of both the Pretoria Society
of Advocates and the
Johannesburg Society of Advocates, but that he was reluctant to plead
guilty to the charge sheet as formulated
as it was possible that he
may be criminally prosecuted on the same facts. Under those
circumstances he was reluctant to waive
his constitutional right to
silence as a potentially accused person. He stated that for the same
reason the respondent would not
oppose an application brought to
strike his name from the Roll of Advocates.’
[117]
It must thus come as a surprise to many, not least Mr Nthai himself,
that no prosecution ensued. The high court considered
the amount
involved ‘a mere R5 million’. That characterisation, is
extraordinary. To borrow from John Till Allingham,
‘[R5
million] is a sum not to be sneezed at’.
[68]
More
so, when the bribe was solicited some 12 years ago. The high court
also stressed that the amount had, in any event, not been
paid.
However, as emerges from the arbitral award in the matter, Mr Nthai
occasioned the citizens of this country actual prejudice.
The
arbitration award recorded that:
‘
The
[Government] very correctly and wisely withdrew that element of its
claim for costs that was attributable to Mr Nthai’s
work. A
Tribunal cannot properly order that the costs of a Party’s
adviser who engages in the solicitation of bribes should
be recovered
from the other Party.’
Thus,
whilst the Government was successful in the arbitration and the
Tribunal concluded that it was entitled to its costs, the
Tribunal
held that the fees paid to Mr Nthai could not be recovered as a
result of his conduct. It appears that Mr Nthai’s
fees for his
involvement in the matter amounted at that stage to € 432 320.21
(in excess of six million rand at the current
exchange rate). The
Registrar of this court will accordingly be directed to forward a
copy of this judgment to the National Director
of Public
Prosecutions, for her attention.
[118]
With regard to costs, we were informed from the bar that counsel for
the GCB and the JSA acted in this appeal without fee
and that an
order should be made only for the recovery of their disbursements. We
intend making the ordinary order with regard
to costs, though we note
for the information of the taxing master that the costs of counsel
are restricted to the recovery of disbursements
that have been made
by them or on their behalf.
[119]
In the result:
(1)
The application by the Pretoria Society of Advocates for leave to be
joined as the third appellant in the appeal is dismissed.
(2)
The application by the first and second appellants for leave to
adduce further evidence is dismissed.
(3)
The appeal is upheld with costs, excluding counsel’s fees.
(4)
The orders of the court below, dated 24 May 2019 and 18 July 2019,
are set aside and each is replaced with the following:
‘
The
application is dismissed with costs, excluding counsel’s fees.’
(5)
The registrar is directed to forward a copy of this judgment to the
National Director of Public Prosecutions.
_________________
V M Ponnan
Judge of Appeal
APPEARANCES
For
First Appellant:
P Kennedy
SC (with him N Ferreira and Y Ntloko)
Instructed
by:
Edward
Nathan Sonnenbergs Inc, Sandton
Webbers,
Bloemfontein
For
Second Appellant:
F Ismail (with him PN Smith
and M Lengane)
Instructed
by:
Edward
Nathan Sonnenbergs Inc, Sandton
Webbers,
Bloemfontein
For
First Respondent:
G Shakoane SC (with him
F Khunou)
Instructed
by:
Kgatla
Incorporated, Polokwane
Lovius
Block, Bloemfontein
For
Second Respondent:
FW Botes SC
Instructed
by:
Bernhard
van der Hoven Attorneys, Brooklyn
Rosendorff
Reitz Barry, Bloemfontein
[1]
I
borrow the expression from the title of an article by Professor Lisa
Lerman, Professor of Law and Director, Law and Public Policy
Program
at the Columbus School of Law. See L G Lerman ‘The Slippery
Slope from Ambition to Greed to Dishonesty: Lawyers,
Money, and
Professional Integrity’ (2002) 30
Hofstra
L Rev
879-922, especially at 880-881: ‘Lots of lawyers are among the
wealthiest people in the country… Some of those lawyers
have
stepped over the lines of legality and embarked on illegal schemes
of income expansion… Many lawyers are preoccupied
with
gaining power within their law firms and with expanding their own
incomes… [But] preoccupation with money tends to
have a
corrosive effect on integrity. For some people, the desire for
wealth leads to dishonesty because it’s easier to
expand your
income more quickly if you don’t bother about legal niceties…
Lawyers have fiduciary responsibilities
to their clients, including
an obligation not to exploit their client’s resources for
personal gain. A lawyer who is in
the grip of a desire to expand his
income may be more likely to trample on his client’s financial
interests, either legally
or illegally, honestly or dishonestly.’
(Footnotes omitted.)
[2]
The judgment
of the high court is reported as
Nthai
v Pretoria Society of Advocates and Others
[2019] ZALMPPHC 23 and was delivered on 24 May 2019.
[3]
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998
(4) SA 649
(SCA) at 655I-656A;
General
Council of the Bar of South Africa v Geach and Others, Pillay and
Others v Pretoria Society of Advocates and Another,
Bezuidenhout v
Pretoria Society of Advocates
[2012]
ZASCA 175
;
2013 (2) SA 52
(SCA) para 126, with reference to an
earlier judgment of this court,
viz
Vassen v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at 538G-H.
[4]
General
Council of the Bar of South Africa v Geach
(above
fn 3) para 126.
[5]
Kekana
v Society of Advocates of South Africa
(above
fn 3) para 13.
[6]
Per
Hefer JA in
Kekana
v Society of Advocates of South Africa
(above
fn 3)
para
13
.
[7]
Agreement
on the Promotion and Protection of Investments (signed 06-09-1997,
entered into force 16 03 1999).
[8]
Nthai v
Pretoria Society of Advocates and Others
(above fn 2)
para 93.
[9]
See
Pretoria
Society of Advocates and Others v Nthai
[2019] ZALMPPHC 32;
2020 (1) SA 267
(LP) para 40:
‘
We are
satisfied therefore that all the grounds of appeal raised by both
the JSA and LPC in their respective applications for
leave to appeal
lack merit. In our view there are no reasonable prospects of success
on appeal and secondly, there are no valid
reasons why this appeal
should be heard…’
[10]
See
Nthai
v Pretoria Society of Advocates and Others
[2019]
ZALMPPHC 33 para 30. Paragraph 1 of the order reads as follows:
‘
The judgment
and order of this court delivered and issued on 24 May 2019 shall
operate and be executed in full pending the outcome
of the
application for leave to appeal including future appeals, if any, to
be noted by any party.’
[11]
Van
der Berg v General Council of the Bar of South Africa
[2007] ZASCA 16
;
[2007] 2 All SA 499
(SCA) para 2. (Footnotes
omitted.)
[12]
Per
Corbett JA in
Law
Society, Transvaal v Behrman
1981
(4) SA 538
(A)
at 557B-C.
[13]
Kudo
v The Cape Law Society
1972
(4) SA 342
(C)
at 345H-346A, as quoted with approval in
Behrman
at
557D-E.
[14]
Swartzberg
v Law Society of the Northern Provinces
[2008] ZASCA 36
;
[2008] 3 All SA 438
(SCA);
2008 (5) SA 322
(SCA)
para 18.
[15]
Pretoria
Society of Advocates and Others v Nthai
(above fn 9)
para 12.
[16]
Nthai v
Pretoria Society of Advocates and Others
(above fn 2)
paras 71-72.
[17]
Section
119
of the LPA.
[18]
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division
[2005] ZACC 22
;
2007 (3) SA 210
(CC) para 26.
[19]
See
Eberhard Bertelsmann SC ‘Independence and the advocates’
profession’
Consultus
(May 1998) 66 at 67.
[20]
Section
116
of the LPA.
[21]
Sections
4
and
5
of the LPA.
[22]
Sections
37
-
41
of the LPA.
[23]
Section
40(3)
of the LPA.
[24]
According
to the Supreme Court of Appeal in
David
Trust and Others v Aegis Insurance Co Ltd and Another
[2000] ZASCA 108
;
2000
(3) SA 289
(SCA) para 31, ‘[t]he phrase “in connection
with” is a wide one’. Similarly, in
Rex
v Bresler
1939
CPD 504
at 505 the Cape Provincial Division (as it was then) stated,
relying on English law, that ‘the words “in connection

with” have been given a very wide meaning…’.
[25]
The
court relied on rule 3A(1)
(c)
of the Uniform Rules of Court, which states as follows:
‘
Subject
to the provisions of rule 6 in so far 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 six weeks before the day on which his
application is to be
heard by the court—
…
(c) serve a copy of
the documents and affidavit referred to in paragraphs
(a)
,
(b)
and
(b
A
)
on the Secretary of the Bar
Council or the Society of Advocates of the division concerned.’
The Court also
relied on a Practice Directive by the Limpopo Judge President, dated
24 July 2018, which states as follows:
‘
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’.
[26]
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) para 85.
[27]
South
African Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
[2017]
ZACC 4
;
2017 (5) SA 1
(CC) para 9.
[28]
Gordon
v Department of Health, Kwazulu-Natal
[2008]
ZASCA 99
;
2008 (6) SA 522
(SCA) para 9. (Footnotes omitted.)
[29]
Ibid
para 10.
[30]
Abrahamse
and Others v Cape Town City Council
1953
(3) SA 855
(C) at 859B-F.
[31]
Minister
for Justice and Constitutional Development v Nyathi and Others
[2009] ZACC 29
;
2010 (4) SA 567
(CC) paras 5-6.
[32]
Veriava
and Others v President, SA Medical and Dental Council and Others
1985 (2) SA 293 (T).
[33]
Johannesburg
Society of Advocates v Edeling
[2019] ZASCA 40
;
2019 (5) SA 79
(SCA) para 17.
[34]
Society
of Advocates of South Africa (Witwatersrand Division) v Cigler
1976
(4) SA 350
(T) at 358D. See also
Kekana
v Society of Advocates of South Africa
(above
fn3) at 655G-H.
[35]
Ex
Parte Knox
1962 (1) SA 778
(N) at 784G-H.
[36]
Kudo
v The Cape Law Society
1972
(4) SA 342
(C) at 675G-676.
[37]
Swartzberg
v Law Society of the Northern Provinces
(above fn 14) paras 14 and 15.
[38]
Commissioner,
Competition Commission v General Council of the Bar of South
Africa
2002
(6) SA 606
(SCA)
para 19.
[39]
Van
der Berg v General Council of the Bar of South Africa
(above
fn 11) para 23.
[40]
De
Freitas and Another v Society of Advocates of Natal and Another
2001
(3) SA 750
(SCA)
at 763G.
[41]
In
re: Rome
1991
(3) SA 291
(A)
at 306F-G.
[42]
Rösemann
v General Council of the Bar of South Africa
2004
(1) SA 568
(SCA)
para 28.
[43]
Ibid
paras 9 – 10.
[44]
General
Council of the Bar of South Africa v Geach
(above
fn 3) para 131.
[45]
Ibid
para 132.
[46]
Ibid
para 132.
[47]
Society
of Advocates of South Africa (Witwatersrand Division) v Cigler
(above
fn 14) at 354.
[48]
Van
der Berg v General Council of the Bar of South Africa
(above
fn 11) para 23.
[49]
Johannesburg
Society of Advocates v Edeling
(above
fn 33).
[50]
Ibid
para 36.
[51]
Society
of Advocates of South Africa (Witwatersrand Division) v Cigler
(above
fn 34) at 354.
[52]
S
v Matyityi
[2010] ZASCA 127
;
2011 (1) SACR 40
(SCA) para 14. (Footnotes
omitted.)
[53]
Law
Society, Transvaal v Behrman
(above fn 12).
[54]
Swartzberg
v Law Society of the Northern Provinces
(above
fn 39) para 27.
[55]
Society
of Advocates of South Africa (Witwatersrand Division) v Cigler
(above
fn 34) at 358A-B.
[56]
Nthai
(above fn 2)
para 77.
[57]
Edeling
(above
fn 33) para 14. (Citations omitted.)
[58]
Swartzberg
v Law Society of the Northern Provinces
[2008]
(above fn 14)
para
23.
[59]
Ibid
para 32. (Footnotes omitted.)
[60]
University
of the Free State v Afriforum and Another
[2017]
ZASCA 165; 2018 (3) SA 428 (SCA).
[61]
Ibid
paras 11 and 9, respectively.
[62]
Ibid
para 11.
[63]
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas and Another
2002
(6) SA 150
(C) at 156I-157C.
[64]
Section
18(3)
of the
Superior Courts Act.
[65
]
Nthai
(above
fn 2) para 80.
[66]
Ibid para
55. The high court continued: ‘The fact that Nthai was
entrusted with handling monies on behalf of the company
[where he
was employed subsequent to his striking off] 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.’

However, even if the evidence of Mr Nthai’s former employer is
accepted as fact, it remains entirely irrelevant. The degree
of
trust placed in Mr Nthai as a mere employee, after being struck from
the roll and thus acutely aware of being under the proverbial

magnifying glass, is by no means a reliable determinant of his
rehabilitation or newly found fitness for the profession. Much
less
when it is the say-so of his former employer, who no longer resides
in this country and therefore has nothing to lose in
the event of Mr
Nthai choosing to once more attempt unlawfully benefiting at the
expense of the national government and thus,
ultimately, at the
expense of the entire country.
[67]
In
Minister
of Health and Others v Treatment Action Campaign and Others (No 1)
[2002] ZACC 16
;
2002
(5) SA 703
(CC) para 10, the Constitutional Court held that ‘a
Court will have regard to the possibility of irreparable harm and to

the balance of convenience of the parties’ before making ‘an
order to execute pending appeal’.
[68]
The
phrase has its roots in J T Allingham’
s 1799
play, Fortune’s
Frolic: ‘Why as to his consent I don’t value it a
button; but then £5000 is a sum not
to be sneezed at’.