BRIBERY accused ex-Limpopo MEC and disbarred senior advocate Seth Nthai’s legal woes are piling up after the North Gauteng High Court gave a key state witness the green light to testify from outside the country.
Nthai, who was in charge of the safety and security portfolio in the Northern Province (as Limpopo was referred to at the time) between 1994 and 1999, faces charges of trying to solicit a bribe from a group of Italian investors in 2009.
He was representing the government when the investors were seeking mining rights when he demanded R5m.
The ANC veteran looks set to finally face the music for trying to bribe Italian investors searching for mining opportunities in SA.
Judge Dario Dosio last month granted the National Prosecuting Authority (NPA) permission to hear the evidence of Italian citizen Mario Marcenaro via video link.
The NPA had argued that the witness was a busy businessman who travelled the world and who found himself in Italy, and that he only travels to South Africa when he is required to do so.
In addition, there appears no requirement for business purposes that he should be in South Africa at this stage.
He found that the request to proceed by way of video link is justified.
”It is clear that there are exceptional circumstances in the matter in casu (in the present case) why the state is applying for the evidence of this witness, who appears to be a key witness, should be allowed, via a virtual link.
“The state argues that the entire case revolves around what he has to say as well as the exhibits that will be presented during his evidence,” reads Judge Dosio’s ruling.
The Criminal Procedure Act (CPA) makes provision for a court to on its own initiative or on application by a prosecutor, order that a witness or an accused, if the witness or accused consents thereto, to give evidence by means of closed circuit television or similar electronic media.
This is done to prevent unreasonable delay, save costs, for convenience, in the interest of the security of the state or of public safety or in the interests of justice or the public or prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.
The judge added that it would be efficient and practicable for the witness to testify, especially since he currently finds himself in Italy, and it appears there will be logistical and financial implications to get him to South Africa to testify.
”This court finds that the state has set out sufficient grounds to substantiate their request as to why section 158(2) of the CPA should be applied to allow this witness who is abroad to testify via video link,” Judge Dosio ruled.
Nthai was found guilty in 2010 after the Pretoria Society of Advocates (PSA) and the Johannesburg Society of Advocates (JSA) received complaints about his unethically and breach of his professional duties as an advocate and then instituted disciplinary proceedings.
He then successfully approached the Limpopo High Court in 2019 to be re-admitted as an advocate after pleading with the PSA, JSA, and the Legal Practice Council (LPC) to forgive him.
Both the JSA and LPC filed an application for leave to appeal, which was initially refused by the high court in Polokwane, but the ruling readmitting Nthai as an advocate was overturned by the Supreme Court of Appeal (SCA) in 2020.
Additionally, the SCA ordered its judgment to be forwarded to National Director of Public Prosecutions Shamila Batohi for her attention, and in 2022 he appeared before the Johannesburg specialised commercial crimes court, which granted him R5 000 bail.
In October this year, Nthai lost his bid to determine whether the founding affidavit he handed over to the investigating officer in the case when completing a warning statement forms part of the warning statement and if the founding affidavit was admissible in the criminal trial.
loyiso.sidimba@inl.co.za