Scathing SCA judges question why Seth Nthai was never prosecuted over R5m bribe bid

• SCA judges have questioned a High Court ruling that found that Advocate Seth Nthai's depression was a sufficient explanation for his attempt to solicit a bribe.
• Nthai's readmission to the Bar is being challenged in the SCA by three advocate groups.
• Judge Azar Cachalia said connecting a depressive condition to "moral weakness" and bribery stigmatised people who suffer from depression.

Two Supreme Court of Appeal (SCA) judges have slammed the Limpopo High Court for finding that Advocate Seth Nthai’s depression explained his attempt to solicit a R5 million bribe from Italian businesses – and questioned why Nthai had not faced criminal charges for his conduct.

"It is remarkable that there hasn't been a criminal prosecution," Judge Azar Cachalia stated on Monday, during an appeal by multiple legal bodies against Nthai's readmission to the Bar.

The Johannesburg Society of Advocates, General Council of the Bar, and Pretoria Society of Advocates are all adamant that the May 2019 Limpopo High Court ruling that found that Nthai was a "changed man" who was unlikely to ever act in an unethical way again was fundamentally flawed and must be invalidated on appeal. 

Cachalia had earlier questioned the High Court's finding that Nthai's poor mental health was the "only thing" that could, "explain the fact that he risked his lucrative practice, the opprobrium of his colleagues and friends and the society at large and his entire career in which he would have practised his advocacy until his retirement for a mere R5 million which amount, it must be pointed out, was not even paid to him".

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Cachalia was unconvinced by that argument, pointing out that Nthai had been diagnosed with depression in 1995 and had, nonetheless, seemingly not been hindered in his legal career by his condition.

"I have yet to come across a logical connection between a depressive condition and moral weakness. That is to stigmatize people who suffer from depression," he stated.

Judge Nathan Ponnan further appeared to agree with arguments by the legal bodies that the High Court had reached its conclusion about Nthai's depression explaining his attempted corruption based on its own speculation and inferences, rather than solid evidence.

"Isn't this the problem with the approach of the court below? It took this rather speculative hypothesis and posited on that, it found that [hypothesis] in and of itself was sufficient to excuse his behaviour?"

The Limpopo High Court last year ruled that Nthai had truly reformed after being recorded, on five different occasions, trying to solicit a R5 million bribe from Italian businesses locked in a dispute with the State over mining rights, which the Italians wanted to settle. 

Ponnan on Monday said transcripts of these recordings did not contain any evidence that Nthai's alleged depression had had a debilitating effect on him at the time that he had sought the bribe.

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Nthai admitted to attempting to solicit a bribe in 2009, while he was acting for the South African government, during his successful application to be readmitted as an advocate.

He was recorded not only promising to make the case go away if the businesses paid the bribe to him into a foreign account, but also disclosing key aspects of government's strategy in fighting the case to one of the Italian CEOs involved in it.

"All of this is calculated, scheming," Advocate Paul Kennedy, for the Johannesburg Society of Advocates, argued.

"There is a rationality to it but an absolute lack of morality. On top of that, he asked for the bribe to be paid into his foreign bank account, clearly to suit his improper purposes, no doubt including setting up a nest egg overseas and presumably avoiding the scrutiny of the authorities in South Africa.

"On top of that he threatened negative media publicity for the Italians, he also threatened raising the issue with NUMSA, the union, to harm their future business prospects in South Africa, which they were seeking to promote specifically by abandoning the arbitration claim".

All of this amounted to a "coldly calculated and executed plan", Kennedy said, before contending the issue of Nthai's depression should have been regarded as a "minor or subsidiary factor" in the evaluation of his conduct.

"At best for him, it may have clouded his judgement to an extremely limited degree," he stated, before adding that Nthai's conduct was, rather, the consequence of his "greed and dishonesty".

There was no evidence that Nthai was depressed at the time that he sought the bribe, Kennedy added, before stating that Nthai's depression was a "red herring" in the case.

While Nthai is adamant that he has shown genuine remorse for seeking a bribe from Italian business people, conduct which he says was driven "by greed and uncontrollable desire for personal financial gain", Advocate Faizel Ismail – for the General Council of the Bar – said his alleged contrition was insincere and formulaic.

Ismail said Nthai had repeatedly avoided acknowledging that he had sought to solicit a "corrupt bribe" and had instead engaged in "sugar-coated damage control" to minimise the seriousness of his wrongdoing.

In court papers, Nthai maintained that, while he demonstrated the "character defects" of "dishonesty; greed; poor judgement", his behaviour was also influenced by the depression and anxiety he was experiencing at the time.

The hearing continues. 

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