AGE OF ACCOUNTABILITY
Disgraced Joburg advocate Seth Nthai to be tried on attempted bribery charges
A trial date has been set for an advocate alleged to have solicited a R5-million bribe from an Italian businessman in 2009. At the time, Mario Marcenaro was one of 11 Italians who were locked in a mining rights dispute with the South African government.
Seth Azwihangwisi Nthai, 62, out on bail of R5,000, faces three counts of corruption. He is set to appear in the Gauteng High Court on 3 June.
Gauteng National Prosecuting Authority spokesperson Phindi Mjonondwane said the case stems from an alleged attempt by Nthai in October 2009 to solicit a R5-million bribe from Italian businessman Mario Marcenaro.
The case dates back to November 2006, when a dispute arose between the government and 11 Italian companies with mining interests in two companies registered in South Africa.
The dispute culminated in the arbitration case of Piero Foresti and Others v The Republic of South Africa, under the Additional Facility of the International Centre for Settlement of Investment Disputes with case number: ARB(AF) 07/1, held at the Permanent Court of Arbitration at The Hague.
Nthai was appointed by the State Attorney’s office to represent the government of South Africa in the dispute.
The Italian businessmen had sued the government for introducing new mining laws which provided for the lapsing of registered mineral rights and the vesting thereof in the State.
The Italian claimants stated that the introduction of the Minerals Act placed their investments in South Africa in jeopardy. The matter was set down for hearing from 12 to 23 April 2010 in The Hague.
However, on 30 March 2009, under the parties’ agreement, the Permanent Court of Arbitration issued an order suspending the proceedings for two months so that the parties could pursue settlement negotiations.
The parties, Mjonondwane said, were willing to enter into talks to settle the dispute — the only impediment was the R50-million cost that had already been incurred by the government.
During this period, the State alleges, Nthai purportedly arranged three separate meetings with some of the claimants, without the knowledge of his client, the government, to solicit the bribe in exchange for influencing his client to accept a settlement agreement.
“Nthai is alleged to have also disclosed the merits of his client’s case, defences and technical strategies. Nthai was disbarred and removed from the roll of advocates by the Pretoria High Court in 2013 after he was found guilty of contravening the code of ethics for legal practitioners,” Mjonondwane said.
Nthai then launched a campaign to be readmitted to the bar. In May 2019, the Limpopo High Court granted him permission to practise as a senior counsel.
But the Johannesburg Society of Advocates and the General Council of the Bar were not satisfied and appealed against the Limpopo High Court’s decision.
In December 2020, the Supreme Court of Appeal dismissed Nthai’s appeal to be readmitted to the bar and Judge Nathan Ponnan directed that a copy of the judgment be forwarded to the National Director of Public Prosecutions.
The SCA papers contained more incriminating evidence. In his founding affidavit in support of his readmission application, Nthai said: “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.”
From the papers, at some point Nthai appears to agree with an evidently racist assertion by Marcenaro that this kind of corruption is “more African”. Nthai was not aware that Marcenaro had recorded their conversation.
Dismissing Nthai’s appeal application, Ponnan stated: “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.”
In August 2021, the Constitutional Court dismissed Nthai’s application to appeal the SCA judgment that overturned his readmission to the bar.
The NPA then finalised the charge sheet and indictment against him. Nthai briefly appeared for a pre-trial conference in the Gauteng High Court on 4 May 2022.
The matter was postponed to 3 June to allow Nthai to make representations to the Director of Public Prosecutions to have the charges against him withdrawn. DM