Advocate challenges bid to have him struck off roll

Advocate Seth Nthai is challenging a recommendation by the Pretoria Bar Council to have him struck off the roll on the basis that the telephone or cellphone recordings used to nail him could have been tampered with.

Lawyers acting for Nthai, who resigned from the Johannesburg and Pretoria Bar Councils last month following allegations that he tried to solicit a R5 million bribe from a client, said an expert appointed to verify the authenticity of the alleged recordings found they were copies and not the original as requested. This, they said, had resulted in errors which may have had an influence on the meaning of the words.

Forensic consultant Leendert Jansen said in an affidavit that after analysing the recordings he found that they were not originals as he had expected.

"What I did find, however, places me in a serious dilemma as concerns authenticity. I have found things on the recordings which I have trouble with. In order for me to resolve these problems about authenticity, it will be essential that I have access to the original recordings. In the absence of the originals I cannot declare these recordings to be without tampering," he said.

Nthai's lawyer, Corlett Manaka, said the case against her client had been pursued without giving him sufficient time to present his defence.

Prior to the hearing last month, Manaka wrote: "Our client is entitled to a fair hearing. More important, he has to be given time to prepare his defences accordingly."

Pretoria Bar Council chairman HJ de Vos said its disciplinary committee had found Nthai guilty of misconduct in trying to solicit a bribe in facilitating a favourable settlement in the arbitration matter which led to the complaint.

"He (Nthai) placed his own personal financial interest above the interests of his client, to the actual prejudice of his client," said De Vos.

The Bar Council announced in January that Nthai, vice-chairman of the General Council of the Bar of South Africa, would face disciplinary action following a complaint from the State Attorney's office. It had been prompted by concerns raised by an international law firm being instructed by Webber Wentzel Bowens' Peter Leon on behalf of the South African government in a test case for foreign investors.

Transcripts and recordings of conversations Nthai allegedly had with Mario Marcenaro, the head of Finstone, one of the parties in the case, were handed to the State attorney and to the Bar Council by the international lawyers as part of the evidence against Nthai, a member of the SA legal team. It related to alleged discussions between Nthai and Marcenaro, representing 11 Italian investors, without instructions from his client on the merits of the government's case, its defence and technical strategies, the possible settlement of the case out of court and a potential reward for Nthai for his efforts.

De Vos said it was satisfied the discs correctly reflect the conversations between Nthai and Marcenaro "even though there is a lot of annoying electronic background noise".

He said the report by the forensic expert on the recording had not been submitted to the committee.

The disciplinary committee appointed by the Johannesburg and Pretoria Bar councils to probe the allegations against Nthai will consider the report and recommendations against Nthai on Tuesday.

The arbitration process that led to the complaints against Nthai is due to start tomorrow in The Hague.

Despite initial threats to approach the High Court to determine the authenticity of the taped discussions, Nthai resigned from the Johannesburg and Pretoria Bars at the start of the hearing, and allowed the process to continue in his absence. He made no admissions.

However he said in a media statement that he had held discussions with a representative of the Italian companies without instructions from his client, and accepted that this constituted a breach of the professional code of ethics.