Johannesburg Society of Advocates and Another v Seth Azwihangwisi Nthai and Others

Mr Seth Nthai, SC, was an advocate admitted in 1988 and member of the Pretoria Society of Advocates (PSA). In 2007, he was appointed to act as lead counsel for the South African Government before an International Arbitration Tribunal involving Italian nationals claiming a bilateral investment treaty breach. Without the knowledge of the Government or State Attorney, Mr Nthai met with the claimants' CEO, Mr Marcenaro, and attempted to solicit a bribe of R5 million into his foreign bank account in exchange for settling the dispute on terms disadvantageous to his client. Mr Marcenaro recorded their conversations. The State Attorney lodged a formal complaint with the PSA in January 2010. Mr Nthai voluntarily suspended himself from practice and resigned from both the PSA and JSA. A Disciplinary Committee (DC) found him guilty of attempting to solicit a bribe, placing personal interests above his client's, disclosing privileged information, and betraying his client's confidence. Mr Nthai was struck from the roll of advocates on 15 April 2013 without opposition. In October 2018, Mr Nthai applied ex parte for readmission in the Limpopo High Court, serving only POLSA. The PSA and JSA intervened. The high court granted the readmission application on 24 May 2019, and also granted an order that the readmission be executed pending appeal (the s 18 order). The JSA and GCB appealed to the Supreme Court of Appeal.

• What is the nature of readmission proceedings for advocates and the onus to be discharged?
• Do the General Council of the Bar of South Africa (GCB) and its constituent Bars (JSA and PSA) have standing to participate in readmission applications following commencement of the Legal Practice Act?
• Did Mr Nthai discharge the onus of proving he is a fit and proper person to be readmitted as an advocate?
• Did the high court err in granting an order for execution of the readmission order pending appeal in terms of s 18 of the Superior Courts Act?

(1) The application by the Pretoria Society of Advocates for leave to be joined as third appellant is dismissed. (2) The application by the JSA and GCB for leave to adduce further evidence is dismissed. (3) The appeal is upheld with costs, excluding counsel's fees. (4) The orders of the high court dated 24 May 2019 and 18 July 2019 are set aside and replaced with: 'The application is dismissed with costs, excluding counsel's fees.' (5) The Registrar is directed to forward a copy of the judgment to the National Director of Public Prosecutions.

The binding legal principles established are: (1) Readmission proceedings are sui generis in nature, not ordinary civil proceedings, and the ordinary Plascon-Evans approach does not apply. (2) The onus in readmission applications is on the applicant to prove on a balance of probabilities that there has been genuine, complete and permanent reformation; that the defect of character or attitude which led to striking off no longer exists; and that he can be trusted to carry out the duties of an advocate satisfactorily. (3) The GCB and its constituent Bars have standing as custodes morum to participate in readmission applications both under the Advocates Act and the Legal Practice Act. Section 44 of the LPA affirms rather than derogates from their role. (4) Where an application for readmission is launched before the commencement of the LPA, it must be determined under the Advocates Act by virtue of s 12(2) of the Interpretation Act. (5) Where an applicant for readmission has been struck off for dishonesty involving calculated and persistent conduct for personal financial gain, only the most exceptional circumstances will warrant readmission. The applicant must demonstrate true cognitive appreciation of the character defects involved and provide clear and convincing evidence of reformation. (6) Failure to take the court fully into one's confidence, refusing to disclose relevant documents, and obstructive conduct in the readmission proceedings are inconsistent with reformation and militate against readmission. (7) Section 18 of the Superior Courts Act requires exceptional circumstances to justify execution of a judgment pending appeal. The applicant must prove irreparable harm if execution is not granted and that the opponent will not suffer such harm. Mere inconvenience from the normal operation of the appeal process does not constitute exceptional circumstances.

The court made several non-binding observations: (1) The court noted the "slippery slope from ambition to greed to dishonesty" and that preoccupation with money tends to have a corrosive effect on integrity. (2) The court expressed surprise that Mr Nthai had not been criminally prosecuted for his conduct, which clearly constituted attempted bribery and corruption, and directed the Registrar to forward the judgment to the National Director of Public Prosecutions. (3) The court emphasized the importance of the referral rule and the divided profession, noting that Mr Nthai's conduct in the Anglo Platinum matter violated fundamental principles by acting without proper instructions from an attorney, engaging in direct financial dealings, and performing administrative work normally done by attorneys. (4) The court criticized POLSA for supporting the readmission application without proper explanation, suggesting it had failed in its duty as custos morum. (5) The court noted that character references are generally unhelpful unless they indicate the extent of the referee's knowledge of the applicant's wrongdoings and whether they understand the personality traits or character defects that led to striking off. (6) The court commented that Mr Nthai's assertion that his conduct caused the Government no prejudice because the bribe was never paid ignored the fact that the arbitration tribunal refused to award costs attributable to Mr Nthai's work (over €432,000) due to his corruption. (7) The court noted with approval that counsel for the GCB and JSA acted in the appeal without fee, consistent with their role in protecting the profession and public interest rather than acting as adversarial litigants.

This case is significant in South African jurisprudence for several reasons: (1) It clarifies the sui generis nature of readmission proceedings and reaffirms the heavy onus on applicants seeking readmission to prove complete and permanent reformation, particularly where the striking off involved dishonesty. (2) It confirms the continuing role and standing of the General Council of the Bar and its constituent Bars as custodes morum of the advocates' profession, even after commencement of the Legal Practice Act. (3) It establishes that where readmission applications are launched before the LPA came into force, they are governed by the Advocates Act pursuant to s 12(2) of the Interpretation Act. (4) It provides guidance on when exceptional circumstances exist to justify execution of a judgment pending appeal under s 18 of the Superior Courts Act. (5) It emphasizes that readmission proceedings are not about punishment or forgiveness, but about protecting the public interest and the integrity of the legal profession. (6) It illustrates that where dishonesty and greed are at the root of an advocate's striking off, only the most exceptional circumstances will warrant readmission, and mere passage of time, financial hardship, or character references are insufficient.