13 July 2024 | 12:37 PM

Govt lawyer ‘asked for bribe’

Key Takeaways

Disgraced senior advocate and former ANC politician Seth Nthai could face criminal charges of corruption for attempts to solicit a R5-million bribe from Italian investors.

Nthai was kicked out of the Johannesburg and Pretoria Bars this week after both bodies accepted a ruling by retired judge Kees van Dijkhorst that found him guilty on six charges of misconduct.

The Johannesburg Bar Council has further resolved to report the matter to the police.

Nthai, a former presidential appointee to the Judicial Service Commission who has acted for government in numerous high-profile cases, resigned from both Bars before the start of his disciplinary hearing and abstained from participating in the hearing.

Van Dijkhorst, however, decided to proceed with the hearing and accepted evidence placed before him about Nthai’s attempts to solicit a bribe from Italian businessman Mario Marcenaro, relating to a mining rights dispute in which Nthai was acting for the South African government.

Marcenaro’s affidavit was accepted by Van Dijkhorst. It paints a picture of Nthai as a man willing to compromise his integrity in return for money, while flaunting his political connections to achieve a particular outcome.

According to Nthai’s charge sheet, 11 claimants, including Marcenaro’s company, Finstone, requested the Washington-based International Centre for Settlement of Investment Disputes to arbitrate in a dispute between them and the South African government over granite rights.

The claimants are challenging the Minerals and Petroleum Resources Development Act of 2002. They claim about R2,2-billion from South Africa and the matter is currently being heard in The Hague.

In 2007 Nthai was briefed by the state attorney to defend the South African government.

Prior to October 2009, when Nthai allegedly requested a bribe for the first time, the parties were discussing converting the Italian investors’ rights into “new-order rights” under the Act, which would have rendered the arbitration proceedings unnecessary.

According to Marcenaro’s affidavit, he was receiving “conflicting messages” from different people in government about the case. “We did not know whether the dog was wagging the tail or the tail was wagging the dog.”

Marcenaro decided to travel to South Africa to ascertain what the government’s position was on the matter.

His South African attorney, Maurizio Mariano, advised Marcenaro that Nthai was involved in the case and arranged a meeting with him in Johannesburg on October 10 2009.

Nthai told him that the government was split about the matter; that a certain “faction” wanted to settle and others wanted to fight on. “I was not prepared for what Nthai said next: he said that for him personally, it was better if the case continued, because he was making a lot of money out of it. He said that he was an influential member of the government’s legal team — Nthai said that if he joined the side that wanted the matter settled, he would lose money.”

Marcenaro states that he was surprised at how “straightforward” Nthai was about his “personal interest” in the matter.

“Nthai said that if the claimants paid 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.”

Marcenaro started recording the conversation on his cellphone, without Nthai knowing. The following quotes, according to Marcenaro, make it clear that Nthai was not acting in the best interests of South Africa:

Nthai: “That is the bottom line. I can help you terminate it and I lose money — The most lucrative case I can ever have.”

Marcenaro: “Really, hey?”

Nthai: “Of course. It is the most lucrative case I can ever have. I mean, I can sit with this case for another five years, and I mean, I will make more money to retire.”

Marcenaro wrote down Nthai’s proposal and told him he had to consult his fellow investors.

All the claimants decided against bribing Nthai.

On October 18 Nthai and Marcenaro met at Marcenaro’s Johannesburg home, where he told Nthai the investors weren’t willing to pay him. “Nthai said to me that he was ‘prepared to close this deal, but I mean you must know that I am losing income and that is the bottom line. If it [the deal] goes ahead, well, I still get my income.'”

Twice thereafter they met at Marcenaro’s home in Italy, where Nthai attempted to keep the deal alive.

After receiving unsatisfactory responses from the South African government, the investors decided to inform their lawyers and counsel about Nthai’s attempts to solicit a bribe.

“Nthai made it clear that he did not want me to disclose his ‘offer’ to our lawyers,” Marcenaro’s affidavit says.

After it was revealed that a “senior representative of the respondent [South Africa]” had attempted to solicit a bribe, Nthai told Marcenaro he “would have to find ways of protecting myself, because I am not going to get — drowned”.

Nthai’s legal team was still considering whether to oppose an application to have him struck off the roll of advocates.

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Before joining the amaBhungane team in 2017, Micah was the national coordinator for media freedom and diversity at the Right2Know Campaign. He holds a Masters in African Studies from Oxford University and a BA Honours in History from Wits University.

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