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IN THE HIGH COURT OF SOUTH AFRICA

LIMPOPO DIVISION, POLOKWANE

 

(1)      REPORTABLE: YES/NO

(2)      OF INTEREST TO OTHER JUDGES: YES/NO

(3)      REVISED

 

 

CASE NUMBER: 6271/18

DATE: 24 May 2019

 

SETH AZWIHANGWISI NTHAI                                                                       Applicant

 

V

 

PRETORIA SOCIETY OF ADVOCATES                                                        First Respondent

JOHANNESBURG SOCIETY OF ADVOCATES                                           Second Respondent

POLOKWANE SOCIETY OF ADVOCATES                                                  Third Respondent

THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL                            Fourth Respondent

JUDGMENT

THE COURT: MAKGOBA JP et MABUSE J:

[1]       This is an application by the Applicant, Seth Azwihangwisi Nthai ("Nthai"), to be re-admitted as an advocate. When the application was launched on 18 October 2018, it was done in terms of the provisions of the Advocates Admission Act 74 of 1964 ("the AAA") read with the provisions of sections 24(1), 115 and 116 of the Legal Practice Act No. 28 of 2014 ("the Act"). The AAA has since been overtaken by the Act which came into operation on 1 November 2018. On that date the Act repealed the AAA.

[2]        THE PARTIES

2.1        In these proceedings Nthai describes himself as an adult male currently residing at house no. 4, 18 Eccleston Crescent, Bryanston, in the Province of Gauteng.

2.2        The First Respondent, the Pretoria Society of Advocates ("PSA"), and the Second Respondent, the Johannesburg Society of Advocates ("JSA"), are voluntary associations of advocates practising predominantly in the Gauteng Division and Gauteng Local Division.

2.3        Polokwane Society of Advocates ("POLSA") is the Third Respondent. It does not oppose Nthai's application but instead supports it.

2.4        The South African Legal Practice Council is the Fourth Respondent.

 

[3]        Nthai was a member of the PSA and the JSA. His name was removed from the roll of advocates at the instance of the PSA by the order of the Court granted on 15 April 2013.

3.1     He now seeks to be re-admitted as an advocate of this Court in terms of the provisions of the Act. In terms of the Act, he seeks to be re-admitted as a legal practitioner and be enrolled as an advocate of the High Court. The application is opposed by all the Respondents save POLSA.

3.2     "This judgment is about being given a second chance. It concerns the question whether the four applicants ..... who were struck from the roll of advocates on 29 November 2011 should be re-admitted as advocates of this Court. " See Ex Parte Pillay and Others Case No. 29768/2012 [par 1] Gauteng Division, Pretoria. Likewise this judgment is about Nthai being given a second chance. Likewise it concerns the question whether Nthai should be re-admitted as an advocate of this Court. Considering the circumstances under which Nthai's name was removed from the roll, the fundamental question to be answered in this application is whether there has been a genuine, complete and permanent reformation on Nthai's part. In Law Society, Transvaal v Behrman 1981(4) SA 538 (A) at 557 BC (Behrman") the Court had the following to say:

"Where a person whose name has previously been struck off the roll of attorneys on the ground that he was not a fit and proper person to continue to practise as an attorney applies for his re-admission, the onus is on him to convince the Court on the balance of probabilities that there has been a genuine, complete and permanent reformation on his part; that the defect of character or attitude which led to his being adjudged not fit and proper no longer exists; and that, if he is re-admitted, he will in future conduct himself as an honourable member of the profession and will be someone who can be trusted to carry out the duties of an attorney in a satisfactory way as far as members of the public are concerned."

This test was applied with approval in Swartzberg v Law Society of the Northern Provinces 2008(5) SA 322 (SCA) paragraph [22]("Swartzberg").

 

THE BACKGROUND

[4]        It is otiose at this stage to deal with the preliminary point of lack of jurisdiction on the part of the PSA and JSA as raised by Nthai. As agreed in Court, we will deal with that aspect with the merits so that the judgment in the end accounts for both the issues regarding jurisdiction and the merits of the matter.

 

HISTORY AND BACKGROUND OF NTHAl'S ETHICAL TRANSGRESSIONS

[5]        According to his evidence Nthai's first duty is to make a full and frank disclosure and to explain fully the circumstances that led to his name being removed.

5.1       Nthai sets out the history and background to his ethical transgressions which led to the application for the removal of his name from the roll of advocates as follows.

5.2       On 8 November 2006 eleven Italian claimants requested the Washington based International Centre for Settlement of Investment Disputes ("ICSID"), to arbitrate in the dispute between them and the Government of the Republic of South Africa ("the Government") over their investments in South Africa. The dispute between those claimants and the Government in the said arbitration culminated in the case of Piero Forestee and Others v The Government of the Republic of South Africa.

5.3       The dispute arose from the introduction of a new mining law in South Africa, namely, the Mineral and Petroleum Resources Development Act 28 of 2002 ("MPRDA") and the Mining Charter which provided for the lapsing of registered mineral rights and the vesting thereof in the State;

5.4       The claimants had shares in South African registered companies, namely The Marlin Holdings Ltd, the Marlin Corporation and the R.E.D. Graniti SA (Pty) Ltd ("RED Graniti"). The claimants contended that the two instruments were unfair and discriminatory and were tantamount to expropriation of their investments. They claimed compensation in the sum of R2.2 billion from the Government.

5.5       As a result the claimants sought recourse on the basis of two Bilateral Investment Treaties concluded between the Republic of South Africa and the Government of the Italian Republic on the Promotion and Production of Investments signed in Rome on 9 June 1997 as well as the agreement between the Republic of South Africa and the Belgo-Luxenborg Economic Union signed in Pretoria on 14 August 1998. The claimants further contended that the MPRDA and the mining charter contravened the Bilateral Investment Treaties.

5.6       In the year 2007 Nthai was appointed by the State Attorney, Pretoria, as the lead counsel to act on behalf of the Government in the dispute before the International Arbitration Tribunal ("IAT"). The departments of the Government that were involved in such proceedings and on behalf of which he was acting were the Departments of Trade and Industry and Mineral and Energy, as it is now known.

5.7       The State Attorney briefed him and appointed a law firm based in France, namely Freshfields, to represent the Government in the said arbitration. The claimants in the said arbitration proceedings were represented by Webber Wentzel ("WW"), a law firm based in Johannesburg. WW had later instructed a British Barrister, by the name of Landau QC, to act for the claimants.

5.8       The Government defended the claim and filed its Counter Memorial. The claimants were due to file their reply. The matter was set down for hearing from 12 to 23 April 2010 in The Hague, Amsterdam. On 30 March 2009, pursuant to the parties' agreement, the Arbitration Tribunal issued an order suspending the proceedings for two months until 28 May 2009, so that the parties could pursue settlement negotiations through counsel.

5.9       On 27 May 2009 the parties again jointly requested the Arbitration Tribunal the stay of proceedings for a further three weeks. This joint request included the agreement that any proposals for settlement or discontinuance would be communicated by the parties' legal counsel to the other's legal counsel.

5.10     The claimants wanted to withdraw from the proceedings but could only do so with the consent of the Government. Rule 52 of the Procedural Rules of the ICSID states that the claimants could withdraw with the consent of the other party. Therefore, the payment of costs became the main and contentious issue. At that stage the Government costs stood at €5 million which by South African exchange rate was about R50 million.

5.11    In addition the Government had already paid €80,000 in advance as the administration costs. So if the claimants wanted to withdraw in terms of the said Rule 52, the question of €5 million or (R50 million) and €80,000 of administration costs became an elephant in the room.

5.12      As counsel for the Government, Nthai, had an ethical and legal duty to advise the Government in respect of the dispute. He accepts that his ethical conduct betrayed the confidence and the trust placed upon him by the South African Government.

 

NTHAl'S EVIDENCE WITH REGARDS TO THE EVENTS THAT LED TO HIS ETHICAL TRANSGRESSIONS

[6]       We now deal with the evidence of Nthai regarding the events that led to his ethical transgressions. These are events that arose from a series of meetings that Nthai had with a certain Mr Marcenaro at various places and on various dates, in particular, on 9, 10, 18, 20 and 28 October 2009. We will deal with the events of each meeting.

6.1     9 October 2009: meeting at Maestro Restaurant

6.1.1      During September 2009 Nthai was briefed by a certain Maurizio Mariano on several matters. Mauriano was an attorney of Italian origin of the firm Biccari Bolo Mariano Incorporated in Johannesburg.

6.1.2      On 9 October 2009 Mariano invited Nthai for lunch at Maestro Restaurant in lllovo, Johannesburg. Marcenaro, who was the CEO of one of the companies involved in the arbitration proceedings, requested a meeting with Nthai. Nthai had met Marcenaro in London in one of the pre-arbitration meetings. He agreed to meet Marcenaro who flew to South Africa from Italy on 9 October 2009 and arrived in the morning of 10 October 2009. Nthai knew or at least suspected that Marcenaro wanted to discuss with him the issue of costs which had stalled the arbitration proceedings.

 

6.2     Meeting of 10 October 2009 at the Mariano Office

6.2.1       On 10 October 2009 Mariano drove with Nthai to his offices. Upon arrival Mariano made his boardroom available for the meeting between Nthai and Marcenaro. Marcenaro said that the issues he would like to discuss with him should not be shared with lawyers on both sides. Nthai responded by saying that it all depended on the issues that he, Marcenaro, would like to raise with him. Marcenaro then told him that the claimants had realised that he was an important lawyer in South Africa who was trusted by the Government and the ANC. He furthermore told him that he wanted to have future relations with him so that he could help their companies in South Africa and other countries where they had operations. Marcenaro had told Nthai that some of the claimants were convinced that it was not necessary to continue with the case as they did not want to antagonise the Government. He told him that they had requested their lead counsel to give them an opinion to confirm that position. They promised to share with him the opinion to be furnished to them. He pointed out that RED Granite wanted the case to continue.

6.2.2       The next thing, Marcenaro asked him what the best way was to have the matter settled without involving lawyers. Nthai explained to him that since the Tribunal was seized with the matter it would be difficult to have the matter settled without involving the lawyers. He advised Marcenaro to request his lawyer to send a letter to Freshfields with a proposal the following week and that step would trigger some discussions between the parties. He then reminded Marcenaro that the Government was not averse to settlement and that the last attempt to settle the matter was aborted by his own lawyers who adopted the stance that if the Government wanted the claimants to pay costs they would rather proceed with the arbitration process. Nthai told him that there were factions in Government and one faction wanted the matter to proceed. He also told him that, in his view, the claimants had a weak case and were ill-advised to launch the proceedings. Marcenaro then asked Nthai if he was prepared to help them to have the matter settled.

6.2.3       Nthai then told Marcenaro that if the claimants were to pay R5 million into his foreign bank account he would use his influence to get the Government to agree to settle the matter with each party paying its own costs. Furthermore, he told Marcenaro that he had prepared the proposal for settlement and if the claimants agree to pay the money he would get the Government to accept the settlement proposals. Marcenaro then told him that he would discuss his proposals with his partners. Nthai, however, cautioned him strongly against disclosing their discussions to other parties.

6.2.4       Nthai then proceeded to give him the terms of withdrawal along the lines as captured in the recordings. He told him to write down the terms of withdrawal in his own handwriting so that "it does not come from me''. Nthai states that the terms of the withdrawal were couched in a strong language in the sense that the claimants were required to accept that the provisions of the MPRDA and the Mining Charter did not violate any of the Bilateral Investment Treaties [BIT] and International Law. He added that the claimants ought to accept that the Mining Charter in the context of the South African history was a novel instrument geared towards allowing previously disadvantaged individuals, including women, to enter the mining industry. At that stage he could see Marcenaro shaking his head to show his disapproval. He understood his reaction as he had then touched on the raw nerve and those were the bases of their claims. It is important to point out that Nthai mentioned that the claimants would pay 100% of the ICSID administrative costs and fees and each party to pay its own costs.

6.2.5       At that meeting he and Marcenaro agreed that Nthai would visit Piza, in Italy, to see their operations in Carrara and that he, Marcenaro, would also introduce him to his father-in-law and other claimants. He told Marcenaro that he had scheduled a meeting in Europe for other business. He then suggested that they should try to come and visit Piza during their trip to Europe. They exchanged numbers and email addresses. He got an impression that Marcenaro was not opposed to the issue of payment as he neither objected nor showed any disapproval.

6.2.6       Marcenaro and Nthai continued to communicate telephonically whilst he was in Italy. In one of the conversations Marcenaro indicated to Nthai that he, Marcenaro, had disclosed their discussions to the claimants including those from RED Granite. They agreed to meet on 18 October 2009 at his house in Sandhurst. It is important to point out that in his founding affidavit Nthai had stated that he had agreed to meet on 18 October 2018 at his house in Sandhurst, Johannesburg. We accept that the date of 18 October 2018 was incorrect and should actually be 18 October 2009.

6.2.7       According to Nthai Marcenaro recorded part of their conversation without his knowledge.

 

6.3    Meeting on 18 October 2009 at Marcenaro's house

6.3.1      On 18 October 2009 he met Marcenaro at his house in Sandhurst. Marcenaro again recorded their conversation without his knowledge. The recording devices were secretively placed in the living room or formal lounge. He says so because when he arrived at that house he went outside in the verandah as he appreciated the house, the garden and the size of the erf.

6.3.2    Whilst they were outside they were talking about the house. They then proceeded to the lounge. On this day Marcenaro confirmed that he, Nthai, was coming to Italy which was an indication that the visit to Italy was discussed on 10 October 2009.

6.3.3      At that meeting they spoke about other issues and he said "anyhow coming to our problems, our issue''. Marcenaro then said that the Italian shareholders were not happy with the proposal. He further said ''and they are not willing, you know, if the Government feels this is the right thing, great, but to have to compensate people separately, no, really." Nthai understood him to mean that if the Government feels that those were the terms of the withdrawal, the shareholders were not willing to accept it and that they were not willing to compensate Nthai separately. He said that he was in an "awkward position" as the two of them had spoken. He then confirmed that he stopped his lawyers from sending the letter to Freshfield as they had agreed at their first meeting. He continued and said that:

''lt is either a clean deal above board, you know, where the problem goes away, or we are honest people ... they really have been quite forceful." Marcenaro continued to say if Nthai continued and told the Government to stop, it would be a "big loss of income''. He understood him to mean that the Italian shareholders wanted the matter settled without any condition and that they were not prepared to agree to make any payment to him. Furthermore, that if the proceedings stopped Nthai stood to lose income. At that stage, he asked Marcenaro whether he wanted to continue as agreed between the two of them. His response was that "no, they would find a reasonable way out." The claimants wanted a further discussion. In the context of the discussion on that day Nthai understood Marcenaro to mean that the terms of the withdrawal as envisaged by him and the reward for him were unacceptable.

6.3.4      Nthai told Marcenaro that he, Nthai, was prepared to "close the deal'. He told Marcenaro that he would lose income and that if the matter was not heard he would still be paid. It was accordingly up to Marcenaro to decide what to do. During this meeting Marcenaro extended an invitation to him to visit Italy and meet with the shareholders and express his views. It would be better for him to hear the rejection directly from the claimants. They spoke about Marcenaro and Nthai's work and Nthai told him that DME wanted the case settled.

6.3.5      Nthai accepts that it was improper for him to discuss with Marcenaro the position of his client.

6.3.6      He further impressed it upon Marcenaro that he should not disclose to the claimants' lawyers that he had been discussing a possible settlement with him. They then agreed to meet again on Tuesday, 28 October 2009.

 

6.4     Meeting of 20 October 2009 at Marcenaro's house

As they had agreed on 18 October 2009, Nthai and Marcenaro again met on 20 October 2009 at Marcenaro's Sandhurst house. The purpose of that meeting was to discuss Nthai's travelling arrangements to Italy. At that particular meeting he and Marcenaro discussed fully payment of the R5 million. At this meeting Nthai agreed to pay Marcenaro a visit in Italy on 28 October 2009.

 

6.5     Meeting of 28 October 2009, the Italian dinner meeting

6.5.1     As agreed with Marcenaro on 28 October 2009 Nthai visited Italy. During the discussions they had, Marcenaro told him that he was still committed to their arrangements. He told Nthai furthermore that after the case had been settled he would still make good on his commitment for payment even though the claimants were not willing to get involved in any side deals. Nthai asked Marcenaro whether the claimant from R.E.D. Graniti had agreed to discontinue the proceedings and about the opinion of Landau QC.

 

[7]       Nthai admits that his conduct was manifestly unethical and that he was wrong to discuss with Marcenaro the confidential information of his clients. Moreover the conversations and meetings were held without the knowledge of his clients, colleagues at Freshflields, the State Attorney, officials of Government and opposing lawyers of the claimants and WW. He was aware that he compromised the interests of his clients and committed serious ethical breaches.

[8]       In responding to the meetings that Nthai has referred to in his affidavit, Mr Patrick Ellis ("Mr Ellis"),the deponent of the PSA answering affidavit, stated that he has no personal knowledge of the contents thereof and therefore does not place them in issue. He confirmed that he already has commented that the applicant's rendition of events therein contained largely coincided with the version of events that is already a matter of public knowledge. This means that the PSA and JSA admit that Nthai has not omitted anything material relating to the said meetings. It was at these meetings that Nthai's transgressions took place. All of the conversations were recorded.

[9]        Accordingly, this Court concludes that, with regard to the history and background of his transgressions at the said meetings:

9.1     Nthai has made a full disclosure. He has therefore satisfied the requirements set out in Kaplan v Incorporated Law Society Transvaal 1981(2) SA 762 [TPD] ("Kaplan") where the Court had the following to say:

''lt was important that the information should have been detailed and complete, because an applicant for re-admission should make full disclosure of his misdeeds. His misdeeds are vitally relevant to the question of re-admission. See page 792 D-E."

 

[10]     It is of supreme importance to point out that:

10.1     the said Marcenaro had, without Nthai's knowledge, recorded all their discussions at the meetings Nthai has referred to;

10.2     transcripts of the said recorded discussions were made available to both the PSA and JSA;

10.3     the said PSA and JSA had the advantage of reading the transcripts;

10.4     they were therefore placed in a better position to compare the description of events by Nthai with the copy of the transcript;

10.5     that they have found no discrepancies.

 

[11]       If there were any discrepancies, the PSA and JSA would have pointed them out.

[12]       This Court accepts that Nthai had an ethical and legal duty to advance the interests of the Government in respect of the dispute. Nthai accepts unreservedly that his unethical conduct betrayed the confidence and the trust placed upon him by the Government of this country.

[13]      Nthai has, in our considered view, made a full and frank disclosure of the issues discussed including the amount of R5 million in return for him using his influence to secure the terms of withdrawal favourable to the claimants. This included the claimants not even having to pay the costs of the arbitration.

[14]      Nthai admits that his conduct was manifestly unethical and that he was wrong to discuss with Mr Marcenaro the confidential information of his client, especially in the light of the fact that the conversations and meetings were held without knowledge and authorisation from his client, colleagues at Freshfields, State Attorney, officials of the Government and the opposing attorneys and WW. He concedes that he compromised the interests of his client and committed ethical breaches of serious proportions.

 

FURTHER DISCLOSURES: HOW NTHAI WAS EXPOSED AND HOW THE PSA AND THE JSA BECAME INVOLVED IN NTHAl'S TRANSGRESSIONS

[15]      On 30 October 2009 the claimants' legal representatives addressed a letter dated 30 October 2009 to Mr Rob Davis, the Minister of Trade and Industry and another one to Ms Suzan Shabangu, then the Minister of Mineral Resources. In these letters they had proposed that the ICSID proceedings should be discontinued.

[16]      The claimants' legal representatives informed the said Ministers that discussions regarding the withdrawal by the claimants of their claims against the Government and the discontinuance of the ICSID proceedings had taken place between a senior representative of the respective Departments and the representative of the claimants. The letters to the Ministers contained furthermore a proposal that each party should bear its own legal costs and associated costs of the proceedings and that the costs of the proceedings were to be shared equally by the parties.

[17]      Freshfields responded to the said letter and complained that the claimants wrote directly to the Ministers and thereby bypassed the Respondents' counsel. They pointed out to WW that it was improper for the legal representatives of the claimants to bypass counsel for the Government. The said letter was signed by Freshfields by putting Nthai's electronic signature onto it. Nthai did not see the letter before it was sent away.

[18]      On 2 November 2009 the claimants' legal representatives filed a Request For Discontinuance of the Arbitration Proceedings. In the said Request For Discontinuance the claimants' legal representatives had stated that they had discussions about settlement with the "senior representative of the Respondent." It became clear to Nthai that the words "senior representative of the Respondent" referred to him. It then dawned upon Nthai that Marcenaro had disclosed the conversations to the Arbitration Tribunal, his lawyers and the Government.

[19]      On 2 November 2009 Marcenaro telephoned Nthai. During this telephone conversation Marcenaro complained to Nthai about his, Nthai's, signature in the letter by the claimants' legal representatives. Nthai advised Marcenaro that they should respond by stating that the allegations were unfair and further that they had been communicating with a certain Iqbal Sharma ("Sharma") about the settlement and that he had advised them to write directly to the Minister. Before the letter could be despatched to the Ministers, Marcenaro sent it to Nthai who approved its contents by suggesting that they should put in a sentence that stated that "The MPDRA and the Mining Charter do not violate International Law." In that form the letter was sent to the two Ministers and to Freshfields on 31 October 2009.

[20]      On 2 November 2009, Minister Davis, acting on behalf of both the Departments of Trade and Industry and Mineral Resources, replied to the letter of the claimants. He informed them that seeing that the proposed terms of settlement constituted legal matters and seeing furthermore that the Government was represented by its counsel in the arbitration and that counsel received instructions from the Government, they should direct their correspondence to the Government's legal representatives.

[21]      On 2 November 2009 Freshfields wrote a letter to WW and informed them that the Government took umbrage to the irregular and improper manner and timing of correspondence forwarded directly to the Ministers on 31 October 2009. They informed WW to inform their clients accordingly. With regard to the terms of settlement, Freshfields informed WW that those terms were unacceptable as the proposals were clearly not made in good faith. The proposals were accordingly rejected.

[22]      Nthai then informed Marcenaro that the Government would send to the claimants a proposal of settlement of the arbitration proceedings. He advised Marcenaro that the claimants should reject the proposal. He informed him furthermore that that would then lead to a discussion between the parties and that he would be there and '1he matter would be resolved" He concedes that at this stage his role was conflicted. By then Marcenaro had him ensnared.

[23]      On 3 November 2009 Marcenaro called him. During their telephone conversation he confirmed with Marcenaro that he had seen the claimants Request For Discontinuance. He confronted Marcenaro with the relevant reference to "senior representative of the Respondent" contained in the Request For Discontinuance. Marcenaro confirmed that he had not seen the Request For Discontinuance but reassured him that he was not the "senior representative' referred to in the Request For Discontinuance. He then sought confirmation from Marcenaro that the claimants' attorneys, including Peter Leon of WW, were not aware that Marcenaro had been engaged with him. He asked Marcenaro to confirm that he did not disclose to his legal representatives that he had had discussions with him about the settlement and the payment of the R5 million. On the same day Marcenaro confirmed to him that his clients had rejected the offer to procure a favourable settlement of arbitration proceedings in consideration for payment of R5 million. Marcenaro had, unknown to Nthai, secretly recorded their conversations on 3 November 2009.

[24]      On 4 November 2009 WW replied to the letter from Freshfields. In their reply they mentioned, inter alia, that the letter followed upon a series of meetings and discussions between senior officials and the senior representative of the Respondent and the claimants. The letter stated furthermore that the draft of the letter and a copy thereof were sent separately to another senior representative of the Respondent with whom the proposals had previously been discussed.

[25]      On the same date Nthai had a telephone discussion with Marcenaro. He told Marcenaro that he had acted unethically when he engaged with him. He further told Marcenaro that:

''l cannot from an ethical point of view have ever discussed this thing with him."

He told Marcenaro that he had engaged him on the basis that it would be between the two of them and that the discussions would not be disclosed by either of them. He told him furthermore that 'their discussions had now become known and he, Marcenaro, must now see to it that this thing (the matter) dies here." He further told Marcenaro that they would save R50 million if they settled and did not have to pay the costs. He told Marcenaro that he would only assist the claimants to settle the matter if the discussions they had were confidential and not disclosed to anyone.

 

[26]      Shortly after 4 November 2009 Marcenaro visited Nthai at his home in Bryanston. During the discussion that they had Nthai again discussed payment to him in consideration for facilitating the settlement of the arbitration proceedings on the terms favourable to the claimants. Marcenaro gave him an impression that the arrangements were still on track.

[27]      Nthai admits that:

27.1  he was wrong to inform Marcenaro that the Government had the proposals for settlement and the claimants should reject them;

27.2  he was wrong to tell Marcenaro that he should not inform any person, including Peter Leon of WW, about their engagements;

27.3  he had been dishonest to his clients by engaging in conduct that was unethical;

27.4  he accepts that his telephone conversations with Marcenaro and his conduct constituted a serious transgression of ethical rules and showed dishonesty.

 

[28]     On 8 November 2009 Toby Landau QC, telephoned Georgios Petrochilos, a senior solicitor at Freshfields. He told Freshfields that Marcenaro had face to face meetings and conversations with Nthai; that Marcenaro and him had discussed the merits of the case and defences for the Government, the technical strategies, possible settlement and possible reward if the case was settled in favour of the claimants.

[29]     Nthai admits that at all material times when he was engaged and held meetings with Marcenaro he did so without the knowledge of the State Attorney, the claimants' lawyers and officials of the Government. He admits that he was not only naive but was also completely misguided and dishonest.

[30]     Following upon the complaints filed by Landau QC, on 22 January 2010, Ms AM Mosidi, the Head of the State Attorney, in Pretoria, complained about Nthai's misconduct to the Pretoria and Johannesburg Bars with regards to the conversations and meetings that Nthai had had with Marcenaro.

[31]     Ms Mosidi's Jetter:

31.1    informed the two Bars that Nthai had committed gross misconduct and acted inappropriately;

31.2    complained that Nthai acted in a manner that breached his professional duties; acted unethically and without instructions; that Nthai breached the advocate-client's privilege principle and compromised client's case in the manner that sought to benefit Nthai's own interests at the expense of his client's interests; and

31.3   she also reported to the Arbitration Tribunal. She requested the two Bars to expeditiously investigate the conduct of Nthai.

These allegations by Nthai have not been contradicted. It is therefore inevitable for this Court to take a view that Nthai has again made an open and full disclosure.

 

[32]         MEDIA PUBLICITY AND THE EFFECT OF SUCH PUBLICITY

32.1      In his founding affidavit Nthai has outlined the devastating effect of the media publicity on him and his family members. The negative impact on his health was severe.

32.2     He testified that from 26 January 2010 when the news of his transgressions, in particular the issue of the bribe of R5 million became publicly known, he was completely devastated. The news of his transgressions became headline news in all television and radio stations and newspapers.

32.3      Many journalists that he knew started calling him and asking him for interviews in order to hear his side of the story. He decided to decline such interviews. As the calls became intense, he and his legal team decided to use the services of a seasoned journalist to conduct his interviews. For that purpose they employed a certain Abby Makoe. Quite clearly at the time he was already found guilty in the public opinion. Various negative articles were written about his conduct and some of them are still available online. The story was highly publicised. There were also subsequent news articles and commentators who had a field day. Comments about his unethical conduct were posted online.

32.4      Some members of the public reacted with shock and disbelieve and others were dismayed. He was ridiculed all over and again by analysts. His children were teased at school by their fellow learners. However, the teachers tried by all means to give them moral support. The media publicity of his transgressions was very embarrassing to him, his family, friends and colleagues and all those who knew him.

32.5      The media assault mounted against him was intense and rather lengthy. He felt the isolation of his former colleagues at the Pretoria and Johannesburg Bars. Some colleagues he worked with closely avoided talking to him. He was called a sell-out. He wished the world would forget him. He was emotionally drained to the extent that he suspected that his improvement and eventual healing would be unlikely. The impact of publicity was enormous and serious as a result his health was seriously affected. His health deteriorated further and reached a breaking point, it was for that reason that during February 2010 he sought medical advice again from Prof Edward Woolf ("Prof Woolf') as he wanted to better understand the reasons for his dishonesty and state of health.

32.6      Prof Woolf examined him and his finding was that he was really depressed. On the recommendation of Dr Ingrid Williamson ("Dr Williamson"), he was admitted to Medi­ Clinic Sandton where he spent some days. Prof Woolf recommended he should not watch television, listen to the radio and read the newspapers. While he was in hospital he was kept in a separate room. People were not allowed to visit him. He was treated in hospital by Prof Woolf, the clinical psychologist, Dr Maxwell, the neurologist, and Dr Williamson, the psychiatrist. When he was discharged he consulted with Dr Williamson and Prof Woolf for some time.

32.7      Before the date of the hearing in March 2010 approached, he consulted Prof Woolf, who advised him strongly against his participation in the Disciplinary Committee ("DC") hearing. His recommendation was that he should forget the incident and avoid any proceedings that would re-ignite the episode in his mind. He was prepared, though, to write a report and to submit it to the DC.

32.8      He did not disclose to his legal representatives the fact that he was admitted to hospital and that Prof Woolf advised strongly against his participation in the Disciplinary Committee ("DC") proceedings. As he said, at a later stage, after the DC hearing he confided in Adv Dunn ("Mr Dunn") who was a close friend. He also informed him that he was still under treatment by Prof Woolf. Mr Dunn expressed sympathy and better understood his actions before the DC hearing.

32.9      The most important factor was that at the time he could not meaningfully participate in the DC hearing as he was so depressed. It took him almost one hour to read one page of the recordings. He was unable to meaningfully respond to the charges as he would easily forget the preceding paragraph he was reading. There was no way he could meet the deadline, answer the allegations or participate in the DC hearing. At the time he was unwilling to make any health condition public. His feelings could only be understood by people who had suffered depression. It is upon this basis that patients of depression preferred to suffer silently which, in some cases, lead to suicides. The case of Dr Bongani Mayosi of the Faculty of Health Sciences at the University of Cape Town, who recently committed suicide due to depression, came to Nthai's mind. He actually agrees with many health experts who believe that the illness is very prevalent amongst black professionals. However, due to the stigma attached to the illness they prefer to keep silent and unfortunately some of them do not even seek professional assistance.

32.10   His approach towards the DC hearing and subsequent proceedings must be understood in the context of his health condition then. He really accepts that he ought to have disclosed his illness to his legal representatives and even at a very late stage to the chairman of the DC. He sincerely apologised for having failed to do so. He is willing, even at the late stage, to disclose the medical reports to the chairman of the DC. This will be accompanied by an apology.

 

DISCIPLINARY PROCEEDINGS

[33]      During the year 2010 the PSA received complaints about Nthai. According to such complaints Nthai had acted unethically and in breach of his professional duties as an Advocate. These complaints were considered by the PSA. Acting together the PSA and JSA appointed a DC to consider the complaints.

[34]     Nthai was charged with, and found guilty of, the following misconducts that he:

34.1    "corruptly, improperly and dishonestly attempted to solicit a bribe of a sum of R5 million in consideration for advising and persuading his own client (the Government of the Republic of South Africa) to, inter alia, pay its own costs in Arbitration proceedings. It is alleged that the total costs of the Arbitration were approximately R50 million;

34.2    placed his own financial interest above the interest of his client through the actual or potential prejudice of his client;

34.3    established a relationship with a representative of a party who was the claimant in the arbitration proceedings against his client. This compromised the legitimate expectation of his client that his advice with respect to the conduct of the Arbitration proceedings would be honest and independent. The client was entitled to assume that Nthai would act honourable and honestly,·

34.4    entered into and engaged in settlement discussions with the representative of the other party (his client's opponent), without any authority from his client to do so and with the view to advancing his own personal interest rather than the interest of his client,-

34.5    disclosed privileged and confidential information to the other party to the proceedings to the actual or potential prejudice of his client. He advised his client to act to its prejudice, furthering the interests of the other party above those of his client,-

34.6    betrayed the confidence which his client and his instructing attorney had in him to honestly, objectively and independently advance its interest in the Arbitration proceedings. "

 

[35]     At the commencement of the disciplinary proceedings Nthai and his counsel, namely Advocate Semenya SC, were present. Nthai asked his counsel for permission to address the DC. Permission was granted. He formally told the DC that he was resigning from both the Pretoria and the Johannesburg Bars with immediate effect. The DC did not indicate at the time whether or not it accepted Nthai's resignation from the PSA and JSA. He also promised to send a letter to confirm his resignation from the PSA and the JSA to the Bar Councils later that day. He and his counsel then walked out of the proceedings despite an invitation from the chairman of the DC, Judge K van Dijkhorst, that they could remain. They were warned though by the said chairman that the proceedings would continue in their absence.

[36]     On 6 April 2010 the DC issued a written report. In this report the DC had firstly, recommended that Nthai's membership of both the Pretoria and Johannesburg Bars should be terminated and secondly, that steps should be taken to remove his name from the roll of advocates.

 

THE LEGAL PROCEEDINGS

[37]      On 13 April 2010 the Pretoria Bar Council ("PBC") adopted the recommendations of the DC. Quite obviously Nthai's letter of resignation from both Bars had not been accepted. The PBC, having adopted the report or findings of the DC, took a resolution that Nthai was not a fit and proper person to practise as an advocate; that his name should be removed from the roll of advocates in terms of the AAA and that Advocate NGO Maritz SC ("Mr Maritz"), be mandated to bring an application to remove Nthai's name from the roll of advocates. Furthermore he was authorised to sign an affidavit to give effect to the application to remove Nthai from the roll.

[38]      For that purpose of removing Nthai's name from the roll of advocates Mr Maritz filed a founding affidavit. His affidavit was confirmed by the affidavits of Mr Ellis, Gerri! Grobbelaar, Julian Burger and a certain Johnathan Veeraan of the law firm WW.

[39]     It is of supreme importance to point out that alongside the founding affidavit there was another affidavit by Adv Motimele SC in which he had submitted that the PBC had, in its possession, a set of documents which ex facie reflected that Nthai had been paid substantial amounts of money by Anglo American Management Services (Pty) Ltd. Having considered such documents, council of the PSA concluded that Nthai was guilty of overreaching. It requested the Court to look into that charge.

[40]     During the stage in which the issue of overreaching was investigated, Nthai had received a letter from the PBC in which he had been requested to disclose his books relating to the allegations of overreaching. His legal representative responded to the said letter whereafter the DC did not pursue the matter any further. In the application to remove Nthai from the roll of advocates, the PSA pursued the allegations of overreaching against him.

[41]     The PSA does not challenge Nthai's evidence that the issue of overreaching was part of the allegations it had made against Nthai in its application to remove his name from the roll and furthermore that the decision that the Court made on 15 April 2013 took into account the aspect of overreaching. Accordingly overreaching by Nthai constituted part and parcel of the reasons for the removal of his name from the roll. Notwithstanding, Nthai is gnawed by the pains of compunctions for failing to co-operate with the PBC in that regard. He feels that he should have done so.

[42]     He was served ultimately with a copy of the relevant application to strike his name from the roll. In the said application the PSA not only prayed for an order in terms of which Nthai's name should be struck from the roll but, over and above, asked, on the grounds that Nthai's conduct was gross and reprehensible, that Nthai should be ordered to pay the costs of the application on a punitive scale. Although copies of the relevant application to remove Nthai's name from the roll of advocates were not placed before the Court, we do, however, accept that the details of Nthai's unethical conduct were fully outlined in the founding affidavit.

[43]     Nthai's initial approach after being served with a copy of the application, was to file a notice to oppose the application. The purpose of filing that notice, according to his testimony, was not so much to oppose the application as it was to afford him an opportunity to make submissions. It is for that reason that upon his careful consideration he deliberately refrained from delivering any answering affidavit. He had come to the realisation that he deserved to be punished due to the serious nature of his indiscretions. As a consequence the application to remove him from the roll proceeded on an unopposed basis. The Court, per Preller J, granted the following order on 15 April 2013:

43.1     "The name of the Respondent, Seth Azwihangwisi Nthai, is struck from the Roll of Advocates;

43.2      the Respondent is ordered to forthwith hand in his Letters Patent as Senior Advocate to the Registrar of the Court;

43.3      the Respondent is ordered to pay the costs of the application on the scale as between attorney and client. "

 

[44]     Nthai contends that he has complied with the court order inasmuch as he has paid the entire costs of the application. This is not in dispute. It is also not in dispute that by way of a token Nthai has returned the Letters Patent. We deliberately used the word "token" because in his founding affidavit Nthai states that due to the urgency of the court order, he submitted a true copy of the Letters Patent as he was unable to locate the original Letters Patent as he had closed both his Pretoria and Johannesburg chambers and had, over and above, moved house. He stated furthermore that despite diligent search he has been unable to locate the original Letters Patent. The Respondents have not made any issue about this point.

 

THE CONSEQUENCES OF BEING STRUCK FROM THE ROLL

[45]      Ever since his name was removed from the roll Nthai has never practised. He states that the removal of his name from the roll of advocates had very serious aftermaths for him personally, his family and all those members of his extended family who relied on him for support. In January 2010 he found himself without any income. Consequently he was all of a sudden in no position to comply with his financial obligations.       He:

45.1   sold the Porsche motor vehicle in Cape Town. From part of the proceeds of such sale he could settle the outstanding amount. He remained with a balance of R100,000.00;

45.2   was a collector of fine watches. He sold five of some of his precious watches to Peter Machlup at Fine Watches and Diamonds. The proceeds of these watches he sold sustained him for a period. The amount that he got from the sale of the fine watches was just a fraction of their value;

45.3   sold his immovable properties in Cape Town and Hartebeespoort. The proceeds of the sale of such properties were sufficient to enable him to settle some of his outstanding debts;

45.4   had to cancel his medical aid in early 2012 and at the time he did so his wife was not well. He had to cancel the medical aid because his wife's medication was too expensive. It was impacting negatively on his limited financial resources;

45.5   following his financial difficulties after his name had been removed from the roll, Nthai wished that the meetings and the conversations that he had had with Mr Marcenaro had not taken place. He was remorseful. He regretted that such meetings and conversations ever took place. He thought about his unethical conduct every single day and realised that because of his sheer greed and dishonesty he had destroyed his profession. He had become impecunious.

 

[46]     The PSA understood that because of lack of any regular source of income, Nthai would suffer financial hardship. The PSA however submits that Nthai should have taken the Court into his confidence by submitting his financial statements for the period 2010 and for the current position. It is important to point out that such statements were presented to Court on the date this matter was heard and that no reference was ever made to them.

[47]     Nthai continued with his evidence and testified that the motivating factors of those character defects which led to the removal of his name from the roll of advocates were:

47.1  dishonesty;

47.2  greed;

47.3  poor judgment; and

47.4  health condition.

He testified furthermore that he accepted the findings of the DC.

 

[48]          FINDING ONE: SOLICITATION OF R5 MILLION PAYMENT

48.1    Nthai realises and accepts that he was driven by dishonesty, greed and poor judgment.

48.2     He accepts that he was not honest to his client and the claimants.

48.3     On 10 October 2009 he met with Marcenaro at the offices of Mariano in Johannesburg. During this meeting Nthai proposed to Marcenaro the terms of the settlement of the arbitration proceedings and demanded payment of RS million into his foreign bank account, in return he agreed to influence his client to accept the terms of withdrawal.

48.4     Nthai admits that he was wrong to give Marcenaro the proposal for settlement. In his subsequent meetings and conversations with Marcenaro, so he continued with his testimony, he continued to impress on Marcenaro to persuade the claimants to make payment in the sum of R5 million to him. He admits that his conduct was improper, dishonest and unethical.

48.5     He concedes that in the circumstances of his transgressions his conduct justified the removal of his name from the roll. He admits it. It is accordingly unsurprising that the DC recommended the removal of his name from the roll and that the Court duly removed his name from the roll.

48.6      Nthai admits furthermore that he failed to act with integrity and professionalism expected of a practising advocate; that his constant and continual conduct to pursue Marcenaro to procure payment of R5 million to him in order to assist the claimant to settle in terms favourable to them was a very severe breach of his professional duty and failure on his part to discharge his duty with honesty.

48.7      He acknowledges that he placed his own greed and personal interests before the demands and requirements of his profession. He states furthermore that he lost sight of the fact that the legal profession plays an important role in the administration of justice and that it is not a money making trade. He admits that he brought the good name of the legal profession into disrepute.

48.8      The PSA describes his statement that ''in the first place I was wrong to give Marcenaro the proposal for settlement" as a euphemistic description of his misconduct. They contend that such a description is indicative of lack of appreciation of his action at the time. On the strength of such contention Mr Ellis submits that Nthai did not exhibit an understanding of where he went wrong, apart from the fact that the solicitation of a bribe is an act of corruption and that an advocate should under no circumstances even be in contact with an opponent's client.

48.9      It is of paramount importance though to point out that to all the allegations, admissions and concessions made by Nthai, the PSA did not complain that Nthai's rendition of his solicitation of the payment to himself of the sum of R5 million was incomplete, untrue nor that it did not take place in the manner in which he described it.

48.10   In the absence of any complaint or response that Nthai's rendition of facts vary from the contents of the transcripts which the PSA has read, we must therefore conclude that Nthai has made full and frank disclosure with regards to the solicitation of the R5 million payment. Nthai accepts responsibility for his actions. In the first place his testimony is not exculpatory. He does not disregard the facts. The facts that he presented have not been controverted. He does not blame others for his deviant ways. He does not find excuses for his own delinquent conduct. He accepts that he has all himself to blame for falling foul of the profession and his downfall. He fully understands the gravity of his misconduct. He accepts that he had to be punished by the removal of his name from the roll. This is a quintessential example of his acceptance of the seriousness of his misconduct.

48.11   The LPC does not dispute that he made a full and frank disclosure.

48.12   Secondly, he states that the underlying motivating factors of those character defects that led to the removal of his name from the roll were dishonesty, greed, poor judgments and health conditions. This, in our view, is in keeping with what the Court stated in Swartzberg in paragraph [22]

''lt is thus crucial for a Court confronted with an application of this kind to determine what the particular defect character or attitude was. More importantly it is for the appellant to first properly and correctly identify the defect of character or attitudes involved and thereafter to act in accordance with that appreciation. For until, unless there is such a cognitive appreciation on the part of the applicant, it is difficult to see how the defect can be cured or corrected. It seems to me that any true and lasting reformation of necessity depends upon such appreciation." (Our own underlining).

48.13   This means that the Court must know precisely what the cause of a misconduct was; that Nthai is the correct and relevant person better placed to know what led him to commit the misconduct. We are satisfied that Nthai has ably identified the precise defect of character or attitude involved that led him to commit his errant ways and that eventually led to his ruination.

48.14   On the other hand the LPC admits this allegation by Nthai and accepts it.

 

[49]         FINDING TWO: OWN PERSONAL FINANCIAL INTEREST

49.1      This defect character of attitude is similar to greed. In his testimony Nthai takes full responsibility that during these meetings and telephone conversations with Marcenaro he tried with all his might to persuade him to convince the complainants to agree to his offer of R5 million and his terms of settlement;

49.2      he accepts that his conduct was completely wrong and improper, more so in the light of the fact that he had no authority or instructions from his clients or the State Attorney to engage in any settlement negotiations on any of the issues in the arbitration proceedings;

49.3      he continues to testify that the fact of the matter was that his conduct at the time was motivated by serious defect of character. In conclusion on this aspect he accepts and recognises that his conduct was unacceptable and deceitful;

49.4      the PSA acknowledges the fact that Nthai recognised that his conduct was unacceptable and deceitful. Mr Ellis though submits that words are incapable of describing this dastardly deed by Nthai. He accepts Nthai's words;

49.5      the LPC admits the allegations made by Nthai but maintains that "on a conspectus of all the facts" Nthai is not a fit and proper person to practise as an advocate. The LPC fails to set out any facts on the basis of which it takes the point that Nthai is not a fit and proper person to practise as an advocate. It was imperative for the LPC to do so as to enable Nthai to meet the LPC's case and secondly, to place the Court in a better position to make an informed decision. The Court can only make a decision that Nthai is not a fit and proper person to practise as an advocate on the facts placed before it.

 

[50]     FINDING THREE: RELATIONSHIP WITH MARCENARO AND COMPROMISING THE CLIENT'S CASE

50.1      Nthai fully acknowledges that his relationship and conversations with Marcenaro compromised his client's case. He accepts that he should not have discussed the matter with Marcenaro. Due to his greed and uncontrollable desire for personal financial gain he admits that he embarked on a part which was prejudicial to his client's case.

50.2      He acknowledges that he was not authorised by his client to discuss the matter with Marcenaro, yet he did. He also acknowledges that that conduct of his strayed from the fundamental principle of integrity, honesty and reliability.

50.3      Furthermore he admits that he was wrong to advise Marcenaro that there were two factions in the Government whose approaches to the settlement were different. That information, so he admits, compromised the position of the Government when it came to settlement. Nthai takes full responsibility that he was not only wrong but acted unethically when he informed Marcenaro that he would use his influence to promote the settlement he had proposed. All that he did was motivated by a high sense of deception and greed.

50.4      The PSA takes notice of these allegations and in particular of the fact that Nthai recognises that his conduct was unacceptable and deceitful. The LPC, on the other hand, admits these allegations.

 

[51]          FINDING FOUR: SETTLEMENT DISCUSSIONS WITH MARCENARO

51.1     Nthai accepts that it was for him completely dishonest to discuss and give Marcenaro the proposal for settlement of the arbitration proceedings, in particular, without having been so authorised by his clients and opposing attorneys. His conduct was, according to his admission, unscrupulous.

51.2      He acknowledges that all he wanted was to pursue his personal interests at the expense of the mandate he had been given.

51.3      Nthai accepts that what he did was extremely and profoundly dishonest. Accordingly he accepts the findings of the DC in relationship to his settlement discussions with Marcenaro.

 

 

[52]       FINDING FIVE: NTHAl'S CONFIDENTIAL INFORMATION

52.1      Nthai admits that he failed to preserve his client's confidential information.

52.2      On 4 November 2009 Nthai disclosed to Marcenaro that the Government would settle and that the claimants should reject the Government's terms of settlement. He accepts unreservedly that it was unethical and unprofessional for him to inform Mr Marcenaro that the Government would settle and that if they did so the claimants should reject the proposals. He admits that it was wrong for him to do so; that it was unbecoming for him to communicate directly with a representative of the claimants who were the opponents of his clients.

52.3      He accepts the DC's finding. He accepts that the DC was correct in finding him guilty of disclosing the confidential information of his client to Marcenaro. He was only motivated by his personal financial interest.

 

[53]          FINDING SIX: BETRAYAL OF CLIENT'S CONFIDENCE

53.1      Nthai admits that he betrayed the confidence and trust placed upon him by his client. He failed dismally to advance the interests of his client in the International Arbitration Tribunal. He did this by giving Marcenaro the proposal for settlement and later informing him that the Government was planning to settle the disputes and that Marcenaro and his team should reject the Government's terms to settle.

53.2      He acknowledges that he came to realise that he betrayed the trust placed upon him basically because of his greed. His conduct was a quintessential example of disgraceful greed coupled with dishonesty.

53.3      It is for these reasons that he admits that the DC was spot-on in finding him guilty in disclosing the confidential information of his clients to Marcenaro.

53.4      In the aforegoing paragraphs we have come to the conclusion that Nthai demonstrates his realisation that he came to terms with the fact that his acts of dishonesty convincingly demonstrate a material defect of character. He recognises that his conduct was reprehensible and unbecoming. His evidence is not exculpatory and does not disregard the facts. He understands the gravity and the wrongfulness of his misconduct.

53.5      Once again the PSA remarks that once again words fail to describe the audacious act of corruption committed by Nthai. They accept his words.

53.6      The JSA contends that Nthai has not taken this Court into his confidence inasmuch as he has failed to explain who paid for his travel, meals and entertainment and other expenses, if any, when he travelled to Italy to meet with Marcenaro.

53.7      Nthai's evidence is clear that Marcenaro paid only the dinner at the restaurant and for the petrol to the airport. He paid personally for all the other expenses. He gave the reason that if Marcenaro had paid for his accommodation, it would have been unnecessary for him to tell Marcenaro that the hotel to which he had referred him was closed. The implication is that Marcenaro would have himself found out. Nthai testified that this fact is as clear as crystal from the discussions between him and Marcenaro.

 

[54]          NATURE AND DEGREE OF CONDUCT

54.1      Based on the serious nature of his transgressions, Nthai appreciates the fact that the PBC was correct to appoint the DC to investigate his conduct. He appreciates furthermore the fact that at that material time the PBC was the custodian of the Professional Code of Good Conduct and for that reason had a duty to approach the Court.

54.2      There is no doubt that his transgressions were very serious. Firstly, his regular conversations with Marcenaro involved dishonesty, greed and deception. Nthai provided Marcenaro with a proposal for settlement with the sole intention to gain financially from such proposals; just with one eye fixed on soliciting payment to him of a bribe in the sum of R5 million so that he could unduly influence his client to settle the matter on the terms favourable to his client's opponents. Nthai accepts that this transgression was extremely grave and that its gravity merited his removal from the roll of advocates.

54.3      Secondly, his unwarranted engagements with Marcenaro constituted a serious betrayal and trust placed upon him by the Government of the Republic of South Africa and its people.

54.4     Thirdly, his indefensible direct intervention with Marcenaro compromised his client's case and undermined his professional relationship with those colleagues who represented his clients and those on the other side. There is authority that states that:

"The nature and degree of misconduct is a relevant factor when the Court considers an application to be restored to the roll. As was pointed out by Van Winsen in the above quoted passage from his judgment in Kudo's case supra, among matters to which the Court will have regard in an application for re-admission are the nature and degree of the conduct that occasioned the applicant's removal from the roll and the explanation given by the applicant for such conduct, which might mitigate or even perhaps aggravate the heinousness of his offence." See Behrman, p 558G. (Our own underlining).

 

54.5      In Nthai's own words:

"In light of the seriousness of my acts of misconduct, I admit, a lesser sanction by the DC would not have been appropriate. I, therefore, appreciate that the application for striking off was justified I genuinely believe that all that I have done and communicated to Marcenaro was wrong and my conduct was manifestly unprincipled and improper."

These words speak for themselves. Nthai accepts the responsibility for his conduct, without even trying to find a scapegoat or excuses for his own behaviour.

 

54.6      While the PSA takes note of the admission by Nthai that his conduct was manifestly wrong and improper, it contends that Nthai has done nothing more to make amends for the wrong that he has done, such as disgorging the ill-gotten gains. The PSA, quite obviously, cannot challenge Nthai's allegation that he has taken full responsibility for his conduct. This point is demonstrated by its submission:

"That a ritual recantation of the acceptance that the applicant was wrong does not assist him in this case. "

 

54.7      On the other hand, the LPG has admitted the allegations made by Nthai. It is clear that even if Nthai could state a million times that he takes full responsibility for his actions, the PSA and JSA will always regard such a statement as a mere platitude. Both the PSA and JSA, in our considered view, seek to portray Nthai as someone who has not appreciated the seriousness of his indiscretions. That picture is not covered by, and does not enjoy, the support of the evidence Nthai has tendered.

One of the factors that this Court takes into consideration in re-admitting a person whose name was previously removed from the roll is that person's appreciation of the seriousness of his misconducts. Appreciation of seriousness of one's misconducts has the potential that such a person will not repeat the same mistakes.

 

[55]          EMPLOYMENT AFTER HIS NAME WAS REMOVED FROM THE ROLL OF ADVOCATES

In his endeavours to earn income subsequent to his name being removed from the roll he was employed at the following places:

55.1      In February 2012 he was employed by a certain Kovilan Sigamoney, the CEO of Sizonke Civils and Engineering ("Sizonke"), as a compliance officer at the salary of R30,000.00 per month which, according to him, was not enough to cover all the basic living expenses and medical costs. This company was involved in two projects at the time, firstly, in the construction works as a subcontractor to TBP civils which had been appointed to build a primary school at Loftus Gardens near Atteridgeville and an aircraft hangar for the Red Cross in Bloemfontein;

55.1.1   in the aforementioned capacity his duties included supervising all the workers, labour issues, ordering materials and ensuring that the company was compliant in terms of tax matters, statutory and regulatory matters, conducting due diligence on potential customers and subscriptions, site instructions, taking and keeping minutes and marketing and other tasks given to him by the CEO.

 

55.2      All the workers reported directly to him.

55.3      The employment at Sizonke opened another chapter in his life. He quickly had to learn all the construction related issues. The construction of the hangar was completed in December 2012. The sub-construction work at Loftus Gardens was terminated in October 2012. During the same month TBP was placed under business rescue. Later it applied for liquidation.

55.4      As Nthai had, during his practice gained a good understanding of the liquidation industry when he chaired the Committee of Enquiry into the liquidation industry, he was elected as the Chairperson of the Committee of Creditors. This committee played a significant role in the appointment of liquidators and ensured that those creditors spoke with one voice.

55.5      During March 2013 Mr Sigamoney decided to close the offices of Sizonke as he went to join his wife and children in the USA on a permanent basis. After the relocation of Sigamoney, Nthai was left without employment.

55.6      The supporting affidavit of Sigamoney shows that Nthai was given huge responsibilities which included dealing with funds. Sigamoney tendered evidence to the effect that he found the applicant to be pleasant and honest and reliable. In his affidavit attached to the founding affidavit as annexure 'FA24' the said Mr Sigamoney testified, among others, that:

"19    As my family was in the United States of America I would at times leave for a period of a month and feel comfortable that both projects were in good hands. In my absence Nthai was responsible for all the business activities including the finances of the companies.

20      In the end, I abdicated all my responsibilities and Nthai was in full control of the affairs of the companies. I found Nthai to be honest, reliable and a man of integrity Whatever happened that Jed to his transgressions was out of his character. I may also point out that during Nthai's employment there was fierce resistance from the professionals that I had engaged. They felt that the publicity around his case would negatively impact on the business. I however dismissed their concerns as I had already seen Nthai's abilities.

21      Nthai has finally accepted his wrongdoings and I am convinced that if given a second chance, he would never repeat these transgressions. I honestly believe that Nthai still has an important role to play in the legal profession and the society in general. "

It is these qualities that Mr Sigamoney has mentioned in his affidavit that the Court considered as crucial and accepted in W v Incorporated Law Society, Transvaal, 1953(4) SA 187 (T) at 191 A-H, see also Kaplan at p. 776 D-H.

55.7      We are impelled to conclude that Nthai has demonstrated absolute personal integrity and scrupulous honesty in his subsequent employment and interaction with others. The fact that Nthai was entrusted with handling monies on behalf of the company without supervision means that his conduct was commensurate with a large degree of trust. This is one of the most crucial traits that the Court takes into account in considering an application for re-admission. It resonates with paragraph [30] of Swartzberg where the Court had the following to say:

"Where the professional misconduct consists, as here, of theft, one would imagine that it would be relatively easy to establish that the person has undergone complete and permanent reformation. That could be done by placing evidence before a Court that the individual concerned has for some length of time handled money without supervision and has proved his honesty." (Our own underlining).

 

According to Sigamoney, Nthai, as an employee, demonstrated scrupulous honesty, integrity and competency. He opines that Nthai has completely reformed; that he has learned from his own mistakes and that he is now better equipped to practise as an advocate; and he regards him as a fit and proper person to be entrusted with the duties and responsibilities of an advocate. See also Kekana v Society of Advocates of South Africa 1998(4) SA 649 (SCA); Hayes v The Bar Council 1981(3) SA 1070(A), 1081 - 1082D; Swain v Society of Advocates, Natal, 1973(4) SA 784A and Ex Parle Ngwenya: In RE Ngwenya v Society of Advocates 2006(2) SA 88W. Nthai did not relapse into dishonesty during the period in which he was responsible for the management and control of Sizonke's finances notwithstanding that he exercised such control and management unsupervised.

 

[56]       NTHAl'S BUSINESS VENTURES

56.1     In 2010 Nthai floated a mining consultancy company called Phillipus Consulting Services (Pty) Ltd ("Pies Consulting").

56.2     During January 2011 he was introduced to some South Korean investors who had shown interest in green technology such as LED lights. By an agreement between him and such investors, his own company, PIGS Consulting, would be used as a vehicle to market the LED lights on a commission basis. He embarked on the task of introducing the LED lights to the mining industries and municipalities. Later he and his South Korean investors decided to float a company called Sakor Energy Saving Servies (Pty) Ltd ("Sakor"). Here he was assigned the position of the President of the company. He assumed the overall role of supervision and control of the finances of the company. The other directors resolved that he be the sole signatory and administrator of the company's bank account at First National Bank. The finances of the company came from the investments by the South Korean Partners. He invested the money and withdrew it when it was required. Firstly, this evidence shows that Nthai occupied a position of trust and secondly, that during the period he was conducting with the affairs of the companies he did not relapse.

56.3      In order to understand the market of LED lights, Nthai had to conduct research. He edited the proposals prepared by the technicians and engineers for proper marketing.+

56.4      PIGS Consulting also entered into an exclusive marketing agreement with Greenhouse Strategies, a company which was based in the United States of America, in September 2011. PIGS Consulting was granted the exclusive rights to market the green technology products manufactured by Greenhouse Strategies on commission basis. This was to Nthai another opportunity to conduct further research and to understand better the Green Technology Innovations.

56.5      The company began to flounder after the information about Nthai being struck from the roll was discovered on Google. This took place during October 2011 when the Korean partners and the CEO of Hala Construction, a company with which the South Korean partners had negotiated a joint venture agreement, visited South Africa to explore business opportunities. The CEO of Hala Construction used Google Search Engine, found Nthai's name and read about the DC's report and his ethical transgressions. The following morning the CEO informed his Korean partners that Hala Construction, as a listed company, could not be seen to be associating with Nthai. His Korean partners tried their level best to indicate that he has disclosed his transgressions to them and were happy that he showed remorse and learned from his conduct. When he was informed about the decision, Nthai's feelings were stirred all over again. Hala Construction slowly pulled out of the joint venture. From that point it was extremely difficult for Nthai and Sakor to do any business with other companies. The publicity of his transgressions was all over and it did not stop, even after the removal of his name from the roll of advocates.

56.6      During April 2013, Nthai worked on a part time basis at X-Corp, where he was employed by a certain director, Nicols Naidoo, to market X-Corp's products. At a later stage the said Naidoo advanced a financial loan to Nthai.

56.7      He continued developing PIGS Consulting.

56.8      Nthai's evidence on his employment and business activities has not been challenged by any one of the respondents, with Mr Ellis stating that he has no knowledge of the contents of what Nthai has stated. Mr Ellis though listed a number of other companies and Close Corporations in which Nthai had interest but which he, Nthai, had not disclosed in his founding affidavit. In his replying affidavit Nthai conceded that he did not mention all of such companies and Close Corporations and furnished reasons why he did not do so. These companies were not active. He derived no income from them.

56.9      Against all odds Nthai managed quite clearly to employ his talent and skills to a significant contribution to the economy of the country. This is a demonstration that if he is given a second chance he will continue to make contributions to the legal profession. This is a relevant factor that the Court is prepared to take into consideration. This Court finds support for this view in Kudo v Cape Law Society 1972(4) 342 CPD, 345G- 346A ("Kudo 1972") in which the Court stated as follows:

''ln considering whether this onus has been discharged the Court will have regard to the nature and degree of the conduct which occasioned the applicant's removal from the roll, the explanation, if any, afforded by him for such conduct which might, inter alia, mitigate or perhaps even aggravate the heinousness of his defence, to his actions in regard to an enquiry into his conduct and proceedings consequent thereon to

 secure his removal, to the lapse of time between his removal and his application for restatement, to his activities subsequent to his removal, to the expression of contrition by him and its genuiness, and to his efforts to repairing the harm which his conduct may have occasioned to others. These considerations are not necessarily intended to be exhaustive and the weight to be attached to them must naturally vary with the circumstances of the case. They all, however, relate to the assessment of the applicant's character reformation and the chances of his successful conformation in the future to the exacting demands of the profession he seeks to re-enter. "

56.10   On the other hand the LPG does not challenge the allegations made by Nthai with respect to his employment and business activities subsequent to the removal of his name from the roll. The LPG states that they have noted such allegations and goes further to emphasise the fact that Nthai is not a fit and proper person to practise as an advocate of the High Court of South Africa.

 

[57]          VOLUNTARY LEGAL WORK AS PART OF COMMUNITY SERVICE

57.1      In November 2012 a certain Thivhulawi Norman Makumbane ("Makumbane"), the senior traditional leader of Tshisahulu Village in Venda, contacted the applicant and requested him to assist the local Legal Aid Centre in Thohoyandou. Makumbane had informed Nthai that a certain villager whom he knew had been sentenced to life imprisonment for murder. Nthai agreed to assist on a pro-bona basis. Nthai discussed that issue with Sigamoney who agreed that he should be involved in the matter as part of his rehabilitation.

57.2      Nthai worked with attorney James Mangwadu of the Thohoyandou Justice Centre and together they lodged an application for leave to appeal to the President of the Supreme Court of Appeal. Leave to appeal was granted and Nthai assisted in the preparations of the heads of argument and Aide Memoir. The SCA heard the appeal on 10 September 2014 and delivered the judgment on 18 September 2014. The SCA dismissed the appeal on conviction but upheld the appeal against sentence. The sentence was consequently reduced to 20 years' imprisonment. This judgment is cited as Makumbane v State [2014] ZSCA 116.

57.3      When the application to the SCA was prepared Alfred Magadane ("Magadane") was represented by a private attorney. He terminated the mandate of that attorney and appointed Thohoyandou Justice Centre. Nthai had prepared another application for leave to appeal to the President of the SCA. Leave to appeal to the Full Court in the Limpopo Division in Polokwane was granted. The judgment was delivered in 2016. The sentence of Magadane was reduced to 20 years' imprisonment. Since 2017 Nthai has been assisting Magadane to apply for early parole based on his advanced age.

57.4      This invaluable community work which took him over 6 years is, in our view, a relevant factor to be considered in Nthai application. See in this regard Ex Parle Pillay and Others paragraph [25]. In the said paragraph the Full Court regarded Community Service as a crucial factor in an application for re-admission. There is undoubtedly some independent evidence of reformation. Since his name was removed from the roll of advocates Nthai has made a very sincere and determined effort to live with honesty, integrity and dignity. His life in the years he was not in practice had been very difficult and trying years for him. He had dedicated these years to try to rehabilitate himself. According to Sigamoney, Prof Woolf and Dr Williamson, Nthai has completely rehabilitated himself and his reformation is permanent. According to Prof Woolf Nthai showed tremendous remorse, guilt and contrition. Sigamoney considered Nthai as a person who will not repeat any acts which caused his downfall. James Mangwadu had this to say about the assistance from Nthai:

''l do not conceal my happiness and really appreciate (your great assistance). I can handle any matter from now onwards. May God bless you."

 

57.5     The evidence regarding the voluntary legal work that Nthai has rendered has not been disputed either by the PSA or the JSA in their answering affidavits. However, the JSA initially adopted the stance that the voluntary work ought to have been done under supervision. This appears correctly to have been abandoned in the answering affidavit. In any event Nthai submits that there is no merit in the submission. Voluntary work was done on a pro-bona basis. We conclude that Nthai is therefore a fit and proper person to be re-admitted as an advocate.

 

[58]          PATH TO REFORMATION AND REHABILITATION

58.1      After he had undertaken not to practise and after the removal of his name from the roll, Nthai used the time to re-discover the anchors of his existence and undertook deep self-introspection and soul searching. He came to realise that the lapse of moral judgment was a defect of character and needed to reform which would require constant introspection, self-criticism and working hard towards reformation. Having read the findings of the DC many times he was determined to learn from his own mistakes and transgressions.

58.2      While he was working at Sizonke, he discussed with Sigamoney openly and frankly about his transgressions and feelings of guilt. During April 2012 Sigamoney suggested that Nthai should see Pastor Nelson Abraham ("Pastor Abraham") of the Baptist Union of South Africa Church for spiritual guidance. Pastor Abraham assisted him to learn to accept his guilt and make amends.

58.3      His interaction with Pastor Abraham was in April 2012. The first session that he had with him was to give him an opportunity to explain his transgressions and deep feelings of guilt. Pastor Abraham counselled and consoled him that God still loved him and that what happened should be accepted as God's way of showing him the right path. He further indicated that Nthai should never doubt his abilities. This gave 'him strength and he started to see some light at the end of the tunnel. They prayed together.

58.4      Nthai had many sessions with Pastor Abraham and Pastor Abraham became the pillar of his strength. He always encouraged him to review himself in a positive light and used the time to reflect deeply. The intervention of Pastor Abraham made Nthai to have a deep introspection of his actions and that made him to admit that he would never repeat his disgraceful actions. The affidavit of Pastor Abraham is attached to the founding affidavit as annexure 'FA35'. In the said affidavit the said Pastor states as follows:

"14.  It is important to mention that during the counselling sessions, Nthai always wished that he (sic) would want to be re-admitted as an advocate and continued (sic) to contribute to the profession that is so dear to his heart. During the sessions, he would express and show remorse of what he had done. My task was to encourage and impress upon him that God would restore heaven to him, including his position as advocate.

15.      I can point out without any fear of contradiction that Nthai has shown remorse and had time to reflect on his defect of character and appreciated the seriousness of his transgressions.

16.      I believe that he has reformed and would not repeat the transgressions which brought him down and shame. I am convinced that Nthai has still a lot to offer to the country, if given a second chance. Nthai is a talented man whose contribution to society is immense.

17.     I do not hesitate to support his application for re-admission and wish him success."

 

58.5      The PSA, JSA and the LPG have not disputed the evidence of Pastor Abrahams. However they argued, without any factual basis, that Nthai has not shown a genuine reform. Their evidence in this regard does not enjoy the support of any objective facts. It is important to point out that the supporting affidavits of Sigamoney and Pastor Abraham were formulated after a long period of observation and counselling. See in this regard Kudo 1972 at 346G-H where the Court states that:

"The applicant says that he is a reformed character and that he is genuinely contrived for what he has done. Compunctions for past mistakes, if honest, undoubtedly affords a measure of insurance against repetition of the same or similar conducts. I am satisfied that applicant's remorse for his misconducts is genuine. I have no reason to doubt the evidence of the deponents who speak to this and, indeed, I do not understand the Society to controvert such evidence. ... "

 

[59]          TREATEMENT BY MEDICAL PRACTITIONERS

59.1      In his evidence, Nthai deemed it of supreme importance to disclose his health condition at the material time the misconducts took place. It will be recalled that in his founding affidavit, Nthai identified his health condition as one of the four primary motivating factors of character defects that led to his name being removed from the roll of advocates. On the basis of that it is easy for one to conclude that Nthai's health condition played significantly a role in his deviant and irrational behaviour. That condition, it is so explained, had a long history.

59.2      With the sole purpose to fulfil the requirement of full and frank disclosure, Nthai took this Court into his confidence and disclosed his health condition. He testified that his health condition is an extremely sensitive and personal matter which has been difficult for him and which he has reluctantly disclosed to other people. It was a condition known only by his late wife. He has now gained the courage to disclose it.

59.3      In his founding affidavit, Nthai set out his long battle with Depression and Anxiety. On this aspect, Nthai relies on medical reports compiled by distinguished medical practitioners, such as Dr Williamson, a psychiatrist, and Prof Woolf, a clinical psychologist. There is therefore powerful evidence in support of Nthai's case. It is therefore unsurprising that Nthai relies heavily on the reports of the said distinguished experts to demonstrate the significant role that his hidden health condition has played in his misconduct.

59.4      It is crucial to point out that in his report, Prof Woolf pointed out that he had advised Nthai against appearing before the DC. His report states, inter alia, that:

"Although Mr Seth Azwihangwisi Nthai improved during the hospital stay and outpatient follow-up, he still remained severely depressed Mr Seth Azwihangwisi Nthai indicated in February 2010 that he had to appear before a disciplinary hearing regarding his professional misconduct. Based on his symptoms and psychometric results, the undersigned cautioned Mr Seth Azwihangwise Nthai strongly against appearing at the hearing as he could not represent himself accurately or at all. Mr Seth Azwihangwisi Nthai indicated that he would follow the advice. I also advised him that any participation in any subsequent proceedings should only be done after I had examined and assessed him. "

59.5     Nthai continued to receive treatment from Prof Woolf. Seemingly, at the material time of the transgressions in October/November 2009, Nthai was still under treatment and had not fully recovered. At the same time he was still under medication by Dr Graeme Maxwell. This was supported by Dr Williamson who in her report observed that Nthai's erratic and irrational behaviour was, at the material time, difficult to explain.

59.6      It was only when his transgressions became known that Nthai appeared to have become aware of, and appreciated, the consequences of his actions. Otherwise how does one explain the fact that he risked his lucrative practice, the opprobrium of his colleagues and friends and the society at large and his entire career in which he would have practised his advocacy until his retirement for a mere R5 million which amount, it must be pointed out, was not even paid to him? One can hardly find any rational basis for his conduct. After all he had a prosperous and successful practice and, besides, held responsible positions.

59.7      Nthai contends that due weight should be given to the opinion of Dr Williamson in which she stated that:

"Mr Nthai reported a longstanding history of intermittent depression and anxiety dating back in 1995 for which he received treatment over years. My first contact with Mr Nthai was in February 2010 and at that stage he was clearly depressed Given his history of intermittent episodes of depression and the Major Depressive Disorder that I observed in February 2010, I am of the view that this could have influenced his behaviour during the preceding months including September, October, November and December 2009. His severe condition in February 2010 could not have developed over a few short weeks. When I assessed Mr Nthai in February 2010, he was unable to give me a rational explanation of his decisions and behaviour in those months in 2009 that led to his disbarment.

Depression can impair a person's cognitive functions and would in that event have a negative impact on his/her concentration and the ability to plan and impair his/her ability to self-appraise, make judgments and often minimise regard for consequences of his/her actions.

The disorder is often not understood and minimised by the public and patients alike. It is a neuro-chemical disorder of the brain which clearly affects many important functions of the brain, including our abilities to conduct our daily lives, professions, relationships and many higher order functions of the brain. Depressed people may make decisions which seem reasonable and rational to them at the time of their illness, for example even attempting suicide, but which they later realise were driven by the distorted reasoning of depression."

 

59.8      Dr Williamson concluded, on the basis of her clinical assessment of Nthai, that:

Nthai, "may have been depressed at the time of his irrational transgressions in October/November 2009 which could have influenced his insight and judgment."

Her opinion enjoys the support of Prof Woolf. Nthai himself admits that he had very little regard to the consequences of his actions. In his own words he stated that:

"I had no regard to the consequences ofmy actions."

 

59.9     Nthai declares that he has fully recovered from the health condition and Major Depression and Anxiety that led to him taking irrational and erratic decisions. This declaration is based on the findings of Prof Woolf who examined and conducted tests on him on 21 and 27 August 2018 and reported that:

"The findings suggest that he was asymptomatic for depression. The undersigned found no reason why Mr Seth Azwihangwisi Nthai should not be reinstated in his previous professional role as an advocate. "

 

59.10   On 3 October 2018 Dr Williamson also examined and assessed Nthai. In her report she made the following observations:

''Mr Nthai made a recent appointment for me to conduct a psychiatric assessment on him on 3 October 2018. He explained that he intended to apply for re-admission as an advocate and would like to include my findings for the purpose of the proposed application.

He arrived on time for his appointment, very well groomed and fully oriented for time, place and person with normal speech and appropriate behaviour. I did not conduct any formal neuro-cognitive testing as in my opinion, Mr Nthai appeared full cognitively intact.

His mood was normal and not depressed Mr Nthai discussed the events which Jed to his disbarment in great detail and he is still unable to offer a logical explanation for the rash decisions he made in October/November 2009 which had such negative consequences for him.

Mr Nthai shows no symptoms of depression, his neuro-vegetative symptoms of sleep, appetite and energy are normal, his mood is stable, he socialises well and his neuro-cognitive executive functions which include attention, focus, concentration, memory, ability to plan, make decisions and have insight into his own behaviour are all good and functioning well .... I conclude that Mr Nthai is not suffering from depression at present. Affording Mr Nthai a second chance by re­ admitting him to the Roll of Advocates would contribute to his self esteem and restore his dignity. "

59.11   Accordingly the reports of the said experts convincingly demonstrate that Nthai has fully recovered from the health condition that probably resulted in his irrational and corruptive conduct during October 2009.

59.11.1      Both the PSA and JSA do not dispute the medical reports of the above named experts. They accept that Nthai suffered from depression and anxiety as described by both medical practitioners and that he has fully recovered.

59.11.2      The PSA though seems to cast doubts on the conclusions of the experts. This they do without having obtained their own expert reports on Nthai. The conclusion that they have reached is not based on any objective facts or expert advice.

52.11.3   It was argued on behalf of Nthai that Nthai was under treatment or taking medication. The comments by the PSA show quite clearly that it is ignorant insofar as the illness of depression and anxiety are concerned.

 

59.12   In support of his plea that this Court should support the opinion of the medical practitioners Nthai relies on Ex parte Caminsky 1958(3) SA 249 (NPD), 252 B-D. In this case the Court, having found that the applicant's misconduct could be attributed to the influence of liquor, had the following to say in accepting the opinion of a medical practitioner with experience of alcoholics and the opinion of the magistrate: "But account must be taken of the nature of the misconduct for which the applicant was struck off. It did not involve criminal offences such as theft or fraud; rather was it professionally unethical and morally reprehensible. But in my opinion it was the sort of misconduct which can fairly be attributed to the influence of liquor. If that influence has permanently disappeared there is, in my opinion, no reason why the applicant should not be a fit and proper person to practise as an advocate. In the light of the opinion of a medical practitioner with the experience of alcoholics and the opinion of a magistrate who is aware of the standard of behaviour expected of legal practitioners, both opinions being based on long personal acquaintances with the applicant, we may safely regard him as now permanently released from the subservience to liquor. In all the circumstances, therefore, reformation has been established. "

59.13   The Court was again referred to another case, the Canadian case of Barry Miller v Law Society of Upper Canada 2004(ONLSHIP) 0004. It is contended that this case supports Nthai's case. We agree with the contention and it is the approach we intend following. In this case the panel of the Law Society of Upper Canada had to deal with the question whether Barry Miller was of good character and whether on that basis, inter alia, he should be re-admitted. The panel accepted that his act of misconduct was not caused by any fundamental character flaw or repeated cause of conduct but ''they arose because of the deep depression he found himself in following his misconduct in Manitoba in 1993 and his subsequent inability to come to grips with what he had done. Once he hit the bottom in the supreme of 2001 and was able to find proper help, he has been able to rehabilitate himself to the point where he can now accept and deal with his prior misconducts and move forward."

59.14   The decision of the Court in re-admitting Barry Miller was based, inter alia, on the medical evidence by a Dr Alberto Choy, a psychiatrist, and Dr Gary Richard Schoener, a licensed psychologist who had both assessed the said Barry Miller.

59.15   Finally on this aspect and in support of the health condition of Nthai, we were referred to the speech by Michael Kirby, the Australian Judge and Academic. This speech appeared under the title "Speech: Lawyer's Society? The influence of Legal Studies and Practice, Stress, Clinical Depression and Sexuality (2015) 88(4), University of New South Wales Law Journal 1438." The speech was made in honour of a bright pupil studying for admission to the New South Wales Bar who had committed suicide. In that speech the Learned Judge had, inter alia, the following to say:

"To honour Daniel, we must resolve to talk about depression. To analyse its causes. Above all, understand why it is common amongst law students, legal practitioners and Judges. Although I did not feel its pain myself, I spent many years of enforced silence about another demon of others that Daniel knew: sexual difference. So, it is not hard for me to understand the challenge of depression. The way out of the closet is to put depression on the table, turn it around, examine it, acknowledge it and challenge its corrosive effects. "

 

59.16   Finally, we have come to a conclusion that Nthai has made a good case that his misconduct was due to his poor health condition at the relevant time and that in that respect he has completely reformed.

 

[60]          SELF-RECOVERY AND REFORMATION

60.1     Nthai took it upon himself to identify and admit all his transgressions and fully appreciate their varied causes and origins. He explained that feelings of guilt and acceptance of the seriousness of his transgressions started when the complaint was lodged by the State Attorney. He continues and testifies that although at the time he was overwhelmed by the publicity deep down in his heart he knew that he was wrong. He understood the importance of upholding the ethical rules and standards of the profession. In fact he had himself written an article dealing with ethical rules. The lack of moral judgment showed serious defects of character which had been corrected.

60.2     On the basis of the facts before the Court it must be accepted that Nthai has completely, genuinely and permanently reformed and furthermore that there is no chance that he will transgress the rules of the practice in future. Nthai has taken the Court into his confidence. The surrounding actions of Nthai as described by witnesses at different times and places show that Nthai has genuinely shown remorse. The valid consideration is not the belief that Nthai would never be rehabilitated due to the seriousness of the transgressions as the PSA would like this Court to believe. It is rather whether Nthai has placed objective facts before this Court showing genuine contrition. The PSA, JSA, the GCB and LPG have submitted that the refusal to accede to the late request to remove the matter from the roll and the unjustified, irregular and late request for information show that Nthai remains unfit to be re­ admitted. We do not agree with this technical submission which has no factual basis. We are satisfied that sufficient objective facts have been placed before this Court that Nthai is now a fit and proper person to practise as an advocate again. In Kudo 1977 at 675G to 676A the Court had the following to say:

"One of the basic criteria for admission or strike off or re-admission is therefore whether or not the person concerned is "fit and proper''. In relation to admission this is a question of fact, as has been said above, and not of "discretion''. Whether the position is any different in respect of striking off or re-admission is not clear. It may well be that it is now implicit in the Act that admission and re-admission are to be dealt with on an equal footing. But that need not be finally decided here. I shall assume that the Court's Jurisdiction to re-admit is inherent and not founded on the Act. In exercising that Jurisdiction, I think, however, that the Court ought to follow the basic requirements of section 4 of the Act,· that is if the applicant shows that he is now a fit and proper person to practise again, he ought to be re-admitted unless cause to the contrary is shown to the Court's satisfaction. That is not inconsistent with the existing authorities. They are at least clear that, in the case of a person struck off the role as being no longer a fit and proper person to remain an attorney, he must in the first place show; in order to be re-admitted, his "complete and permanent reformation';· that is, that he is now a fit and proper person to practise again. For reasons already given this is essentially a factual enquiry which, in my view; does not fall within the ambit of discretion of a Court of first instance.

 

60.3      In Kudo 1977, p676F-677A the Court dealt with the onus resting on an applicant to prove that he has completely reformed. It stated that the onus on the appellant to establish the facta probandum was the ordinary civil onus which means that it was on the balance of probabilities. The use of the word "heavy" means no more than that applictant must prove his complete reformation on the balance of probabilities. The Court, relying on Wigmore on Evidence, 3rd Edition, SEC 1986 cited with approval the following passage from the American case by Willis CJ Richmond v Norwich, 96 conn. 582, 115 ATL.11 in order to establish the facta probandum

"Character ... must be proved in three possible ways: (1) The estimate in which the individual is held in the community; his general reputation as to the trade in question.

(2) The opinion as to this trade or those who have known the individual and have an opportunity to know whether he possessed this trade or not. (3) The acts of the individual under somewhat similar circumstances promotes his character as to his trade may be inferred. The evidence of general repute afford the basis for an inference as to actual character; whether it be the entire character or a single trade of character.

Method (1) is generally recognised as an established method of proving character. Method (2) is permitted in some jurisdictions, but in most it is denied. Whether or not

(1) was of quick temper will require proof of the mental characteristics, and this is the proof of a fact. No-one know so well about this fact as he who has known the person and had the opportunity to determine it. How much more convincing is such evidence than that of a witness who testified to the general repute of this person as to his mental characteristics? His testimony is based upon hearsay and quite likely to rumour and gossip. If mental characteristics is referred, there is no valid reason why this fact may not be proved by any witness who knows what it is. Personal observation and personal knowledge are a more trustworthy reliance than general reputation. The decision to which we have referred, and others to which we need not refer, require the admission of evidence of character from those who know." (Our own underlining)

Then the Court went further and stated that:

"In the present type of case it seems clear that personal knowledge and believe is admissible. "

In simple terms the paragraph means that the Court may always rely on the evidence of those who personally know the applicant as to whether the applicant has reformed completely or not.

 

[61]          REMORSE

61.1      Nthai testified that after listening repeatedly to the transcripts of his conversations with Marcenaro on 10 October 2009 to 4 November 2009 his conscience worked on him. He expressed regret on times without number. As indicated somewhere supra, he was gnawed by the feelings of guilt. He realised that he had wronged many people.

61.2      He showed contrition and genuine remorse as early as March 2010 when he wrote a letter to the State Attorney in which he apologised extravagantly to his clients and colleagues and to the State Attorney. In the letter dated 25 March 2010 to the State Attorney, Nthai wrote that:

"4.     I would like to take this opportunity to sincerely apologise to the Ministers of Trade and Industry and Mineral Resources and the Government of the Republic of South Africa (client).

5.        The Department of Mineral Resources in particular has over years supported me by trusting a number of matters to me, this contributed sufficiently to my profile growth.

6.        I also apologise to all my colleagues at Freshfields Bruckhaus Deringer ("Freshfields') and to you for the inconvenience and embarrassment I have caused you. "

 

61.3     Nthai took further steps and extended his apologies to various individuals and institutions. Nthai has extended further apologies to all and asked for forgiveness from the Pretoria Bar, the Professional and Ethics Committee of the Pretoria Bar, The Government and the people of the Republic of South Africa, members of the Disciplinary Committee, retired Judge K van Dijkhorst, Adv Bokaba SC and Adv Dreyer SC, Mr Maritz, Adv Malan (Proforma Prosecutors), for delaying the proceedings of the DC, the State Attorney, colleagues at Freshfields, the claimants, the Ministers and colleagues in the Department of Trade and Industry and Mineral Resources, the President of the Arbitration Tribunal, Professor Vaughan Lowe QC, the arbitrator, the Honourable Charles N Brown and the arbitrator, the Honourable Joseph Matthews and the secretary of the Arbitration Tribunal, Ms Eloise Obadia, Peter Leon of WW, and Justices Louw and Preller.

61.4      The Senior Traditional Leader of the Tshisahulu Village, also in line with the Venda custom and practices, extended an apology on behalf of Nthai.

 

[62]     After the removal of his name from the roll, Nthai had an indepth self-introspection of defects of character and life. He has upon painful reflection come to the full realisation that his conduct was repugnant and unacceptable. He states that he accepts that as a leader of the Advocates Profession he had ethical and moral obligations to lead by example and that he had a heavier responsibility to protect the integrity of the legal profession. He has learned that greed and dishonesty are destructive and dishonourable elements that took him nowhere but led to shame and embarrassment.

[63]      THE APPLICATION

As indicated above on 16 October 2018 Nthai launched the current application and sought in it his re-admission as an advocate. That part of the proceedings was, at the relevant stage, governed by the AAA, in particular section 5 thereof. Nthai's attorneys had correctly anticipated that by the time the application was heard, the AAA would no longer be applicable and that it would have been replaced by the Act. For that reason the application would continue under the provisions of s 24(1), s 26(1), s 115 and s 116 of the Act.

[64]     At the time Nthai launched his application, the AAA was still in force. At that stage a person who applied to be admitted as an advocate had to satisfy the Court at the hearing of the application that:

"(i)       he was over the age of 21 years and he was a fit and proper person to be admitted and authorised to be enrolled as an advocate;

(ii)          he was duly qualified and;

(iii)         he was a South African citizen or that he had been admitted to the Republic for permanent residence therein or was ordinarily resident in the Republic; and,

(iv)         in the case of any person who had at any time being admitted to practice as an attorney in any court in the Republic or elsewhere, his name had been removed from the roll of attorneys on his own application.

 

[65]      Now in terms of the provisions of s 115 of the Act, Nthai has to satisfy the requirements of s 24(2) read with 26(1) of the Act. Section 115 provides that:

''Any person who immediately before the date referred to in section 120(4) was entitled to be admitted and enrolled as an advocate ... is, after that date entitled to be admitted and enrolled as such in terms of this Act."

Nthai is such a person who was entitled to be admitted and enrolled as an advocate. He must therefore satisfy the requirements of section 24(2) read with section 26.

 

[66]        66.1     Section 24(1) provides that:

''A person may only practise as a legal practitioner if he or she is admitted and enrolled to practice as such in terms of this Act."

In terms of this section a person can only practise the calling of an advocate if he applies to a High Court to be admitted as such and is admitted and enrolled as such;

66.2     section 24(2) provides that:

 

"The High Court must admit to practice and authorise to be enrolled as a legal practitioner, conveyancer, notary or any person who, upon application, satisfies the Court that he or she -

(a)       is duly qualified as set out in section 26

(b)       is a-

(i)             South African Citizen; or

(ii)            ….

(c)       is fit and proper to be admitted; and

(d)       has served a copy of the application on the council, containing the information as determined in the rules within the time period determined in the rules."

 

66.3     that Nthai is a South African citizen is not in dispute. He was born on 1 October 1959 in a village called Tshifudi, in the province of Limpopo, South Africa. He holds a South African Identity document number 5910015830081;

66.4     that he is duly qualified as set out in s 26(1)(a)(ii) is not in dispute. According to s 26(1):

''A person qualifies to be admitted as a legal practitioner, if that person has -

(a)       satisfied all the requirements of the LLB degree obtained at any University registered within the Republic, after pursuing for that study degree -

(i)         the course of study not less than 4 years; or

(ii)        the course of study not less than 5 years if the LLB degree is preceded by a bachelor's degree other than the LLB degree, as determined in the rules of the University in question and approved by the council. "

66.5     We are satisfied that Nthai satisfies the requirements of s 24(2) of the Act read with 26(1)(a)(ii). He holds the degrees of bachelor of procuration and bachelor of laws. For the purposes of the requirements of s 24(2) read with s 26(1) (a) (ii) it is not necessary to refer to Nthai's further qualifications.

 

[67]          SERVICE OF COPIES OF THE APPLICATION

67.1       Nthai's application was served only on POLSA in terms of the provisions at the time of Rule 3A(1)(c) of the Uniform Rules of Court, which provides as follows:

"Subject to the provisions of rule 6 insofar as they are not inconsistent with the provisions of this Rule, a person applying for admission to practise and for authority to be enrolled as an advocate shall, at least 6 weeks before the date on which this application is heard by the Court-

(a)   ….

(b)   ….

(c)   serve a copy of the documents and affidavit referred to in paragraphs (a),(b) and (A) on the secretary of the Bar Council or Society of Advocates of the division concerned. "

Nthai confirms that he delivered, in compliance with Rule 3A(1)(c), a written notice of the application for his re-admission to the registrar of this Court six weeks before the date on which the application was to be heard.

 

[68]     POLSA was in existence at the time Nthai launched his application. This fact is evidenced by the directive dated 24 July 2018 issued by the Judge President of this division. It states in paragraph 2 thereof that:

"With effect from 1 August 2018 it will no longer be necessary for the applications for admission as an advocate to be served also on the Pretoria Society of Advocates. Only service on the Polokwane Society of Advocates will suffice. "

This directive was sent to all practitioners.

 

[69]        Accordingly:

69.1   service of a copy of Nthai's application on the POLSA was sufficient. It was not necessary to serve copies on the PSA, JSA and the GCB;

69.2   the statement by Mr Ellis that the Pretoria and Johannesburg Bars and the Vice Chair of the General Council of the Bar should have been properly cited as Respondents, served with the application for Nthai's re-admission, does not reflect the correct legal position, at the time, of the provisions of Rule 3A(1)(c) of the Uniform Rules of Court nor does it take into account the Practice Directive issued by the Judge President of this Division;

69.3   in all fairness the name of the JSA is not mentioned in the Practice Directive. Even if that is the case there was no need in terms of the provisions of rule 3A(1)(c) for Nthai to serve a copy of his application on the JSA;

69.4   the statement by Hlaleleni Kathleen Matolo-Dlepu who deposed to the affidavit of the Legal Practice Council ("the LPG"), that required Nthai to serve copies of his application on the PSA, JSA and GCB lacks merit;

69.5   at any rate the PSA was informed of Nthai's application for re-admission in a letter dated 19 October 2018 by Nthai's attorneys of record. The said letter reads as follows, among others:

"2.     Our client has launched an application tor re-admission as an advocate in the High Court Limpopo Division, Polokwane under case number 6271/2018. If re­ admitted our client intends to Join the Polokwane Society of Advocates (Polokwane Bar).

3.         In view if (sic) the interest of Society of Advocates (Pretoria Bar) has in the matter, we have been instructed to bring the application to the attention of the Pretoria Bar.

4.         You are kindly requested to bring this application to the attention of the Johannesburg Society of Advocates. "

 

[70]     We accept that by reason of having a substantial interest in the outcome of the application, or secondly, on the basis of the interest of justice, both the PSA and the JSA would want to take part in the proceedings. The door was not closed to them as they could still do so as amicii.

[71]     THE LEGAL STATUS OF THE PSA, JSA AND GCB

69.1    The approach of the PSA and JSA after being informed that Nthai had launched his application in terms of re-admission was to apply to this Court on 30 November 2018 for intervention. The application for intervention was granted by the Full Bench of this Division consisting of Makgoba JP and Phatudi J. On the said date, the following order was granted:

"1.     The main application is postponed to 15 and 16 April 2019.

2.    The Pretoria Society of Advocates (''PSA'J and Johannesburg Society of Advocates (''JSA'J are granted leave to intervene in the main application and are joined as the first and second respondents in the main application respectively, subject to the applicant's right to argue that the PSA and JSA do not have locus standi.

3.    The applicant must serve the main application on the Legal Practice Council, constituted in terms of the Legal Practice Act 2014 which is invited to consider the matter and file a report by not later than 11 February 2019 to the above honourable Court, if so advised

4.     The following terms are fixed:

4.1        The PSA and JSA are required to deliver their answering affidavits in the main application by no later than 30 January 2019;

4.2         The applicant will deliver its replying affidavit, if any, by no later than 18 February 2019;

4.3        The applicant will deliver its practice note, heads of argument, list of authorities and chronology by no later than 18 February 2019; and

4.4         The PSA and JSA will deliver their heads of argument, list of authorities and discrepancies regarding the applicant's chronology by no later than 11 March2019;

4.5        The costs of the intervention applicants are reserved for determination with the main application. "

Following that Court order the PSA became the First Respondent and the JSA became the Second Respondent. The LPG became the Fourth Respondent only upon its application for intervention being granted unopposed on 15 April 2019. The LPC's opposing affidavit was deposed to by its chairperson, Hlaleleni Cathleen Matolo-Dlepu.

 

71.2       Following the said order, the PSA and JSA delivered their answering affidavits deposed to by Mr Ellis, on behalf of the PSA and Mr Green on behalf of the JSA. Both respondents oppose Nthai's application for re-admission. The PSA's answering affidavit was served on Nthai's attorneys on 30 January 2019. It is not clear when the JSA's answering affidavit thereto was delivered but certainly, it was filed with the registrar of this Court on 30 January 2019.

71.3       On 18 February 2019 the Applicant's attorneys delivered Nthai's replying affidavit on the Respondents' attorneys and also on POLSA. In his replying affidavit Nthai took the point that the PSA and JSA have no locus standi to oppose his application. This argument is based on the fact that the Act came into operation on 1 November 2018. In terms of s 119 of the Act the AAA was repealed.

71.4       In terms of s 4 of the Act, the LPG is now charged with the regulatory functions traditionally carried out by the GCB and its constituent bars. Section 4 of the Act provides that:

"The South African Legal Practice Council is hereby established as a body cooperate with full legal capacity and exercises its jurisdiction over all legal practitioners and candidate legal practitioners as contemplated in this Act. "

71.5       Section 5 of the Act sets out the objects of the LPG as, inter alia, to promote and protect the public interest, to regulate all legal practitioners and all candidate legal practitioners and to enhance and maintain the integrity and status of legal practitioners. See in this regard section 5(c) of the Act.

71.6       Accordingly the provisions of section 5 make it very clear that the role of custos morum which before 1 November 2018 was played by the GCB, the PSA and the JSA, has now in law been taken over by the LPG. The GCB, PSA, JSA and the POLSA and all the societies of advocates in the country have now all been stripped of their role of custos morum. Since November 2018 the GCB and its constituent bars have ceased to exist as statutory bodies. In law they are in the same position as a deregistered company. That role now falls in law fully and to the exclusion of the GCB and its constituent bars, to the LPG. Consequently it follows that the powers, since 1 November 2018, to make submissions regarding the applications to strike from the roll, the applicant's application to be re-admitted and applications for the suspension of an advocate are now exercised by the LPG.

71.7       The provisions of s 116(1) of the Act make it as clear as crystal that the Act has now sounded a death knell to the existence of the GCB and its constituent bars as any statutory bodies or as any body with the role of custos morum where it states that: ''Any enquiry in terms of any law repealed by this Act into the alleged unprofessional or dishonourable or unworthy conduct of a legal practitioner which has not been concluded at the date referred to in section 120(4), must be referred to the council which must treat it as it deems appropriate. "

71.8       Following the aforegoing reasons the GCB and its constituent bars countrywide, may in law not even deal with pending applications, such as the current one and any enquiries into alleged unprofessional or dishonourable conduct of its own members.

 

[72]      Accordingly we find that the PSA and JSA do not have any locus standi to oppose this application and that only the LPG does.

[73]     When confronted with the question as to what should the Court do with the affidavits that Mr Ellis has filed on behalf of the PSA and Mr Green has done so on behalf of the JSA, counsel for Mr Nthai, Adv Shakwane SC, submitted that such affidavits should be disregarded in which case only the affidavit filed on behalf of the LPG would be the only document opposing the application for re-admission.

[74]     On the other hand, Mr Maritz, counsel for PSA, came up with a plausible solution that the affidavit should be allowed so as to assist the Court to make an informed decision. But first he seemed to argue that there was locus standi by consent. In this respect he relied on a paragraph in Nthai's heads of argument that stated that:

"8.7  The PSA and JSA are in any event parties to these proceedings and the Applicant accept that they were entitled to participate and make representations to the Court. "

 

[75]     According to Mr Maritz's interpretation of the said paragraph 8.7 it conferred locus standi on the PSA. Mr Shakwane disagreed with him. Firstly, by any stretch of imagination, the said paragraph cannot be interpreted to mean that Adv CHJ Badenhorst SC assisted by Adv Freddy Khunou, who crafted Nthai's heads of argument, conferred any locus standi on the PSA. Secondly, even if they did they were in law not empowered to confer any locus standi when none existed on the PSA. We agree with Adv Shakwane SC ("Mr Shakwane") that the said paragraph did not confer any jurisdiction on the PSA and the JSA but instead it only opened a door for the PSA and the JSA to come and argue the point why they contended that they have jurisdiction in this matter.

[76]    76.1 We do not agree with Mr Shakwane's point that the affidavits filed by Mr Ellis and Mr Green should be discarded. Our reasons for disagreeing with him are as follows. These proceedings are sui generis. No !is exists between the Applicant, Nthai, and the Respondents. In the interest of justice these affidavits should be taken into consideration. The purpose of these affidavits is to put facts before the Court on the basis of which this Court will make an informed decision. This Court must take into account the fact that the PSA and JSA are steeped in the knowledge of the misconducts committed by Nthai; that they alone possessed the information regarding such misconducts; that the Act has recently come into operation and that the LPG was still grappling with its provisions; and lastly and more importantly, that the LPG, as a statutory body, was therefore still ignorant about the misconducts of Nthai. For these reasons it was only proper for the Court to have regard to the said affidavits in order to properly determine the fundamental issues in these proceedings.

76.2 It is only incumbent for the PSA and JSA to bring to the attention of the Court any conduct on the part of the applicant that renders him or her unfit to be admitted for re­ admission. Consequently if any complaint is brought with regard to any member of the PSA or JSA or POLSA it is the duty of such bodies to investigate such a complaint and, through the LPG, to bring it to the attention of the Court.

 

[77]          SUPPORTIVE REFERENCE

77.1      Nthai's application for restoration to the roll of advocates came with supportive references by people with personal knowledge of Nthai; people who were experienced in assessing character. These are the people who were imbued with considerable knowledge of Nthai and his circumstances and who, more importantly, supported his application for restoration and pointed out to his reformation.

77.2      Adv George Bizos SC ("Mr Bizos") provided a supporting affidavit for Nthai's application for re-admission. In his affidavit he states, inter a!ia, that:

"4.     I have served as a director of Lawyers for Human Rights (LHR). I met Nthai through his activities as a regional director of LHR and a member of the Legal & Constitutional Committee of the African National Congress (ANG). In this capacity, Nthai participated in many conferences that shaped democracy in South Africa. When the ANC's Legal and Constitutional Committee convened a conference on whether South Africa should have the Nurenberg Style Trials or adopt the Truth and Reconciliation route, Nthai was an active participant.

5.       Nthai participated in the activities of the JSC, first as the Limpopo Premier's representative and later through appointment by President Thabo Mbeki. It was in this role that I came to know Nthai better.

6.       During interviews of candidates Nthai always asked incisive and relevant questions. It was, however, during close sessions that Nthai's intellect and wisdom has shown. His views were always listened to and respected by all members of the JSC.

7.       When the a/legations of his transgressions first surfaced, they were met with disbelieve and shock. Nthai was regarded by his peers as a man of integrity.

8.        When he requested me to support his application, I agreed to do so as I believe that Nthai still has a role to play in the legal profession. His removal from the roll of practising advocates had left a void which was difficult to fill.

9.        I therefore support his application for re-admission. "

 

77.3      Quite clearly Mr Bizos had considerable knowledge of Nthai which he gained over a long period of time. During such period he had gained the ability to assess Nthai's character. He believes that Nthai still has a role to play.

77.4      Mr Maritz, for the PSA, seemed to downplay the significance of Mr Bizos's support for Nthai's application. He argued that the said Mr Bizos supported Nthai's application without the full knowledge of the primary facts of Nthai's transgressions. This argument lacks merit, in our view. The implication by Mr Maritz was that Mr Bizos blindly supported Nthai's application for re-admission without even having had the basic facts of Nthai's transgressions. This, in our view, was an attack upon the integrity of an eminent jurist, such as Mr Bizos. Mr Bizos knows Nthai's transgressions. It was not necessary for him to detail them in his affidavit.

77.5      The PSA, JSA and LPG have not commented on the testimony of the witnesses who support Nthai's application. They have not tendered any evidence to contradict the evidence of such witnesses. The affidavits of the PSA, JSA and LPG do not directly contradict any of Nthai's supporting affidavits. They have not in their answering affidavits challenged such witnesses' testimony and that evidence cannot simply be discarded. The evidence of Nthai's witnesses establish that Nthai has not relapsed into dishonesty.

77.6     Such testimony includes the evidence of witnesses such as Pastor Abraham, Sigamoney, and Dr Williamson, who attested to their independent observations and expressions of genuine repentance on the part of Nthai and Prof Woolf who testified that during his treatment of him, Nthai expressed regret. For instance, his report has recorded the following paragraph about Nthai:

"Mr Seth Azwihangwisi Nthai saw me on an intermittent basis since that time, and during sessions informed me that he was removed from the roll of advocates. He expressed regret and was ashamed of his actions that led to his removal."

77.7     We are satisfied that the remorse shown by Nthai is genuine and comes from an appreciation and acknowledgement of the extent of the damage caused to the entire local and international legal community.

77.8     Consequently, we are of the view that if the affidavits are carefully studied, the evidence which is contained in them indicates quite convincingly to the satisfaction of this Court that Nthai's reformation has been genuine and complete and that it is only proper for this Court to reinstate him as an advocate.

 

[78]       Mr Ellis was correct when, in paragraph 17 of his answering affidavit, stated that:

"The fundamental question to be answered in an application of this kind is whether there has been a genuine, complete and permanent reformation on the applicant's part. This involves an enquiry as to whether the defect of character or attitude which led him to be adjudged not fit andproper, no longer exists. "

This is the fundamental question that the Court set out in paragraph 3.2 supra. The onus rests on Nthai to prove on the balance of probabilities that the defect of character or attitude that led to his disbarment no longer exists. The statement of principles set out in many authorities is that a test for re-admission as an advocate is the same as that of admission as an attorney or advocate. See in this regard Behrman at 577A-C; Kudo 1977, 675G - 676.

 

[79]      Nthai has adduced strong and cogent testimony of his complete reformation through not only himself but, over and above, through the testimony of people who testified on his behalf. Those include eminent medical practitioners. He has, in our considered view, made full disclosure of his misdeeds. He has been brutally honest by furnishing precise and uncontroverted details of his interactions with Marcenaro and the various discussions that led to his downfall. His founding and replying affidavits show to the satisfaction of this Court that Nthai has identified his character defects which brought about his ruination.

[80]     It is of paramount importance to single out the fact that since he undertook not to practise in January 2010 he has, unlike Mr Christian Serfontein Edeling, the subject of the Johannesburg Society of Advocates v Christian Serfontein Edeling Case No. 326/2018[2019] ZASCA 40 [29 March 2019], who, after having been struck from the roll in this country went on to continue to practise as an advocate in Lesotho, respected the decision of the Court to remove his name from the roll and observed his undertaking not to practise, despite the fact that he was admitted to practise as an advocate in both Lesotho and Botswana.

[81]     Given his abilities Nthai still has an important role to play in the legal profession and society at large. Notwithstanding the provisions of s 25(1) of the Act, Nthai has explained that his intention is to contribute meaningfully towards the growth and development of the emerging POLSA which mainly serves the rural communities and small towns within the Limpopo Province. In this regard:

81.1      distinguished legal practitioners, such as Mr Bizos, who know Nthai, still believe that Nthai has a lot to offer.

81.2      Krish Govender, a senior attorney of the High Court of this country, said the following in his affidavit in support of Nthai's application for admission:

"When he approached me to support his application for re-admission, I gladly accept it. In fact, I felt that if this concern on my shoulders would be offloaded as I always wish that Nthai would one day consider re-joining the profession. There are many challenges that the profession is facing today and lawyers of Nthai's experience and knowledge are needed more than ever before. "

81.3      Mr Kovilan Sigamoney states the following in his affidavit:

"I genuinely realised that the legal profession was poorer without Nthai's talent and skills .... It would indeed be sad and regrettable if Nthai is not given an opportunity to re-enter the legal profession. "

 

81.4      The Senior Traditional leader, Thivhulawi Makumbane had the following to say:

''/ strongly believe that Nthai still has an important role to play in South Africa. I therefore on behalf of the entire community of Tshisahulu and myself support his application for re-admission. Finally, in line with the Venda tradition and practices, it is also incumbent upon me to apologise to all the people that Nthai wronged due to his transgressions."

 

81.5      Mr Sipho Mathebula, the State Attorney who was the instructing attorney in the Piero Foresti matter, had the following to say in support of Nthai's application for re­ admission:

''/ have read the founding and replying affidavits and wish to confirm the correctness of the contents thereof insofar as it relates to me. I wish to add that I was personally disturbed when the a/legation against the applicant surfaced I had accepted his apologies to me. I support his application and wish that he will be given a second chance."

 

81.6      Nthai finds it quite surreal that the PSA submits that, if re-admitted, he ought to refrain from contributing to the development of Jaw. According to him such submission ought to be rejected. The legal profession and the public will benefit immensely from Nthai if he is given a second chance.

 

[82]     With regard to the issue of "disgorging the ill-gotten gains'; it is contended by both the PSA and the JSA that the failure by Nthai to disgorge the ill-gotten gains is proof enough that he has not reformed. In addressing this issue of disgorgement of the ill-gotten gains associated with his misconduct, Nthai has referred this Court to what the Full Court stated in Ex Parle Pillay and Others on the subject. The Court said:

''Mr Pillay fully appreciated that part of remedying his wrong is to disgorge himself of his ill­ gotten gains by repaying these monies. He seeks a directive from the Court to do so. While we accept that part of remedying his wrongs it is for Pi/lay to disgorge his so-called ''ill-gotten gains''. We believe that it is not competent in Jaw for us to make such an order."

 

[83]     It would seem that striking off the applicants in Ex Parle Pillay was considered to be the ultimate penalty and the Court steered away from dealing with that aspect of disgorging the ill-gotten gains. At any rate, in his replying affidavit, Nthai has given the assurance to this Court that that represents an issue that could always be revisited after the hearing of this application.

 

POLOKWANE SOCIETY OF ADVOCATES STANCE

[84]      It will be remiss of this Court if it failed to deal in extenso with the position adopted by this august body towards Nthai's application for his re-admission. As pointed out earlier, POLSA, has chosen to support Nthai's application. It has pledged solidarity with him. If the application is granted, Nthai will become its member.

[85]     POLSA is located within the province of Limpopo. No wonder Nthai served a copy of his application on it. As already pointed out such service was effected in terms of firstly, Rule 3A(1)(c) of the Uniform Rules of Court and secondly, in terms of the Practice Directive issued by the Judge President of this Division on 24 July 2018. Service at the time was therefore proper.

[86]     At the hearing of this application POLSA, which had filed an affidavit deposed to by its chairman, Adv William Mokhare SC, was represented by Adv Mokgerwa Makoti. For the purpose of presenting their position, POLSA had delivered a practice note and heads of argument crafted by its team of counsel.

[87]     In his presentation of POLSA's approach to the application, Adv Makoti submitted that if this Court should find that Nthai has duly served his punishment and find no other reason to refuse his admission, it should accept that Nthai is a fit and proper person to be re-admitted to practise as an advocate. He developed his argument and told the Court furthermore that there were ample examples of applicants who were re-admitted after having their names removed from the roll. POLSA, according to Adv Makoti, regarded Nthai's transgressions as an isolated breach from which he derived no personal benefit. By this POLSA refers to the fact that Nthai did not even receive the R5 million bribe he fought for.

[88]     Adv Makoti argued that the law reports are replete with judgments of advocates who had committed nefarious violations of the rules of the Bar and conduct that was unbecoming of advocates but who, after some period, were re-admitted. Then he went on to make an analogy of cases in which individual advocates who were guilty of violating the most sacrosanct ethical rules of the advocates' profession were removed from the roll and later re-admitted, on their application.

88.1      The first case that Adv Makoti referred this Court to in this regard was the case of Johannesburg Society of Advocates v Tiry [2018] ZAGP J A-C 512. The respondent in that matter, a practising advocate for 17 years, was found guilty of double briefing and overreaching in 106 cases. Paragraph [24] of the said case listed in great detail the numerous violations by the said respondent. Despite these serious findings of dishonesty and the fact that the respondent remained in practice whilst the investigation was underway, the Court found that there were exceptional circumstances that warranted a suspension. This was because the JSA, the applicant in that case, did not act in haste against the respondent nor did it seek to urgently suspend her from practice. The implication hereof is that the JSA is not even handed in all instances of violations of its rules. Instead it was unable to explain why it took over 8 years for it to bring an application against her. The Court itself found that 'there was no suggestion that she has not conducted herself improperly" during the period she was under investigation. The respondent was suspended from practice for a period of 3 years 2 of which were suspended for 3 years on condition that the respondent paid a R500,000.00 fine in instalments of R50,000.00 per month and on condition furthermore that she was not found guilty of unprofessional, dishonourable and unworthy conduct during that period of suspension.

88.2      The second case that Adv Makoti referred us to is the case of Law Society of the Northern Provinces v Kyle [2016] ZA SCA 120. The respondent in that matter, an attorney, had failed to account for monies which he purportedly held in trust. He failed to account for monies he collected on behalf of clients; he had fallen behind in paying counsel their fees; he practised without a Fidelity Fund Certificate and without complying with the Financial Intelligence Act 58 of 2000. The Supreme Court of Appeal found that:

“[24] ... Mr Kyle acted in disregard of his client's best interests, failed to observe the most fundamental rules relating to the keeping of accounting records, did not heed the regulatory directions of the Law Society, did not pay counsel and an attorney, failed to comply with the Financial Intelligence Act requirements and behaved deplorably when faced with his own bad behaviour. I also agree that what was called for was the clear finding that Kyle was not a fit and proper person to continue to practise. "

Nevertheless, as opposed to removing his name from the roll of attorneys, the Court ordered that Mr Kyle be suspended from practice until such time as he had 0satisfied the Court that he was once again fit and proper to resume practice.

 

88.3      The third case to which we were referred was the case of Kwa-Zulu Natal Law Society v Moodley and Another [2014] ZAKZPHC 87. In that matter the respondent, an attorney, who had been practising for his own account for 21 years, was found guilty of overreaching. His client, a widow who sought legal assistance in claiming against an insurer from her deceased husband's life insurance policy and for winding-up his estate, was charged a contingency of 25% in circumstances where no such fee was necessary at all. At first the respondent sought to justify his conduct unlike Nthai. Again unlike Nthai he resisted the allegations in his answering affidavit and even his counsel's argument. However, when the matter was heard he came clean and admitted to his wrongdoing, the Court found that:

"[18]    The conduct of the first respondent is admittedly manifestly unprofessional and worthy of censure. He disgracefully overreached in the fee he charged, he mismanaged the winding-up of the deceased's estate, and in the face of challenge, initially had the temerity to justify his wrongdoings. "

The Court found further that:

 

"[20]    The first respondent has demonstrated that he was not fit and proper to practise as an attorney. However, I think too that the facts demonstrated that he has learned a hard lesson and that there is no reasonable danger of the events recurring. The ultimate professional penalty would, in my view; be too harsh in all the circumstances of the case. "

The Court found that a suspension for a year, suspended for a period of three years, was appropriate in the circumstances.

 

88.4      In Society of Advocates Kwa-Zulu Natal v Lange [2016] ZAKZPHC 102, a case to which we were referred further by Adv Makoti, the Court found that an advocate, who had been in practice as an attorney from 1980 and then an advocate from 2008, had been part of a fraudulent scheme to defraud a trust account for the benefit of a client of her lover's, was still fit and proper to continue practising and that granting the most severe of professional punishment was not appropriate in the circumstances. This finding was made despite the Court having found that the respondent lied under oath. In such findings and sanction, the Court held that:

"[33]    In determining a suitable sanction this Court also takes into account that the respondent has clearly shown remorse for her conduct, which a clinical psychologist, Ms Broll terms a "moral lapse".... We accept, as submitted by Mr Hunt, that the respondent is therefore not likely to repeat her conduct, having regard to the consequences it has brought to her. Not only has she had to face the humiliation of a disciplinary enquiry at which she was found guilty of misconduct, but she has also endured the significant physical and psychological trauma, including being hospitalised as a result of stress. "

 

88.5      Prior to the application being heard by the Court the respondent in the Lange matter was subjected to a disciplinary hearing by the KZN Bar Council. This Disciplinary Committee found her guilty of misleading the Court and being a part of the scheme to defraud a trust. When the Committee gave a sanction of 6 months' suspension, the respondent tendered an immediate resignation. The Court, in considering the appropriateness of the sanction in light of this factor, held that:

"[35] ... there was obvious concern in this case expressed by the applicant that the respondent resigned as a member of the Society after receiving the decision of the committee. The applicant construed the respondent's decision to resign as an attempt to avoid the consequences of her misconduct. However, having fully considered the explanation of the respondent (that she would face severe financial consequences) and the contents of the report by Ms Broll, which have not been refuted, I am satisfied that the respondent did not act with ulterior motive to avoid the penalty imposed by the committee."

88.6      At the time the Respondent had three part-heard matters, the Court, in further consideration of whether its sanction was improper at all, held:

"[36]    I however accept the submission of the respondent's counsel that if she were to be suspended, she should be allowed the period of time to wind-up her affairs ... In order to avoid any prejudice to the respondent's clients, I considered that any suspension imposed take effect from 1 July 2016, thereby allowing sufficient time for these matters to be completed "

 

[89]     From the aforegoing cases Adv Makoti drew the following conclusions:

89.1      Firstly, there is a striking resemblance between the facts of Nthai's case and those of the cases he has referred the Court to. Each of the cases demonstrates a dishonest, unprofessional and unbecoming behaviour of some practitioners. However, what is of paramount importance to stress is that despite their misconducts, those practitioners were not permanently barred from practising. In many cases, their sanctions were suspended. According to him this is an important fact that the Court should bear in mind when considering whether Nthai has done his time and served his punishment.

89.2      Then he continued to argue that full disclosure and complete acknowledgement of one's wrong are important considerations to bear in mind as Nthai has done.

89.3      The public shame that is visited by a finding of dishonesty and misconduct is an important factor in considering an appropriate sanction. Public shame is equally an important consideration to bear in mind when considering a re-enrolment application.

89.4      Even the most dishonest of behaviours can be forgiven if an applicant is able to demonstrate that not only will he not repeat the same shameful conduct in future but he is permanently reformed.

89.5      Adv Makoti found support in the case of General Council of the Bar of South Africa v Geach; Pillay v Prretoria Society of Advocates; Bezuidenhout v Pretoria Society of Advocates 2013(2) SA 52 (SCA) in that some of the individuals who had been struck off the roll by the Supreme Court of Appeal were re-admitted by the Full Court of the North Gauteng High Court.

 

[90]     In what we consider to be very important, Adv Makoti referred us to the judgment of Ex Parle Pillay and pointed out that that judgment establishes that an individual struck off the roll is not permanently barred from re-admission nor is striking off meant to be a punishment in perpetuity. Rather that the purpose of sanctioning a dishonourable advocate is to rehabilitate their behaviour and once rehabilitated re-assessed whether it is desirable for that individual to be re-admitted.

[91]     For the aforegoing reasons POLSA is not only prepared to forgive Nthai for his misconduct but also supports his application to be re-admitted to practise as an advocate. POLSA submits that Nthai has served his punishment; that he has shown remorse for his actions and that he has undertaken never commit similar offences again. It is therefore sufficient for the Court to exercise its discretion in his favour to re-admit him to practise as an advocate. We accept, as a vital point of consideration, the submission made by POLSA that punishment is not meant to break a person but is meant to correct reprehensible conduct. After serving many years out of practice, there can be no doubt that Nthai has learned from his mistakes and that he will, henceforth, not lend himself to similar strikable conduct.

 

[92]          COSTS

92.1      The PSA and JSA should not have entered the affray. We have already given reasons why they should not, qua the PSA and JSA, have entered the battle. For that reason they are not entitled to any order of costs.

92.2      The LPG was required, in terms of the Court Order dated 30 November 2018, to consider Nthai's application and thereafter file a report with the Registrar of this Court. The LPG has failed to file such a report. The Court would have given the directive about the matter after considering the report by the LPG. Mr Shakwane complained about the LPC's failure to comply with the Court order and even worse its deafening silence in failing to furnish reasons why it completely adopted a supine attitude towards an express court order. For these reasons they are not entitled to costs.

92.3      POLSA has not asked for costs against Nthai. Considering its approach to Nthai's application it would have been a surprise if they did.

92.4      The judgment does not make reference to Adv N Cassim SC who was acting for the JSA. It is because he firstly indicated that he would be brief and thereby save time; secondly, that he did not want to argue the points already argued by Adv T Motau SC and Mr Maritz SC and more importantly he had confirmed that he aligned himself with the position adopted by Mr Maritz.

92.5      Finally with sanguine in his voice that the PSA, JSA and LPC will find it in their hearts to forgive Nthai, Mr Shakwane used the following quotation to try and win them over: He referred the court to the sermon delivered on Christmas Day 1957 by Dr Martin Luther King delivered at the Dexter Avenue Baptist Church in Montgomery, Alabama which was called "Loving your Enemies:

"We must develop and maintain the capacity to forgive. He who is devoid of the power to forgive is devoid of the power to love ... Forgiveness does not mean ignoring what has been done or putting a false label on an evil act. It means, rather, that the evil act no longer remains as a barrier to the relationship. Forgiveness is a catalyst creating the atmosphere necessary for a fresh start and a new beginning. It is the lifting of a burden or the cancelling of a debt ... He went on to say, "There is some good in the worst of us and some evil in the best of us. When we discover this, we are less prone to hate our enemies.""

 

[93]      In our view the applicant has made out a good case for the relief that he seeks and accordingly the following order is made:

1.         The applicant is hereby re-admitted as a legal practitioner of the High Court of South Africa to be enrolled as an advocate.

 

 

E M MAKGOBA

JUDGE PRESIDENT OF THE HIGH COURT

LIMPOPO DIVISION, POLOKWANE

 

 

 

PM MABUSE

JUDGE OF THE HIGH COURT

 

 

 

 

 

 

 

Appearances:

Counsel for the Applicant:                             Adv Shakwane SC

Adv Khunou

Instructed by:                                                  Werksmans Attorneys

c/o Kgatla Incorporated

Counsel for the First Respondent (PSA):       Adv NGD Moritz SC

Instructed by:                                                    Bernhard van der Hoven Attorneys

c/o Kampherbeek & Pogrund

Counsel for the Second Respondent (JSA)   : Adv N Cassim SC

 Instructed by:                                                 Edward Nathan Sonnenbergs Inc.

c/o Pratt, Luyt & De Lange

Counsel for the Third Respondent:                Adv M Makoti

Instructed by:                                                  Tumi Mokwena Inc

Counsel for the Fourth Respondent:             Adv T Matau SC

Instructed by:                                                  DMR Attorneys

Dates heard:                                                    15 April 2019

Date of Judgment:                                          24May2019

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