Office of the State Attorney Pretoria
CONFIDENTIAL
The Chairperson
Society of Advocates
High Court of South Africa
Gauteng North
High Court Chambers
220 Vermeulen Street
PRETORIA
and to
The Chairperson
Society of Advocates
High Court of South Africa
Gauteng South
Nedbank House
Ground Floor
2 Protea Place
12 Fredman Drive
SANDOWN
Dear Sir I Madam
COMPLAINT AGAINST ADVOCATE S NTHAI SC MEMBER OF THE AFORESAID SOCIETIES OF ADVOCATES IN THE CASE OF PIERO FORESTI AND OTHERS VS THE REPUBLIC OF SOUTH AFRICA (ICSID CASE NO ARB (AF)/07/O1)
The State Attorney Pretoria acts on behalf of the Government of the Republic of South Africa (the lead departn,ents being the Department of Trade and Industry and the Department of Minerals and Energy as it was known then) in the abovementioned matter.
2. BACKGROUND
2.1 On 8 November 2006, Eleven Italian investors (claimants) name Piero Foresti, Ida Laura de Carli, Dora Foresti, Maria Teresa Suardo, Paola Suardo, Aatonio Foresti; Luigi Foresti, Massimiiiaao Foresti. Franca Conti, Daniela Conti and Finstone s.a.r.l. requested the Washington based International Centre for Settlement of Investment Disputes (ICS1D) to arbitrate in a dispute between them and the South African Government over their investments in South Africa. The dispute arose from the introduction of a new mining law in South Africa in 2004, the Minerals and Petroleum Resources Development Act (MPRDA) of 2002, and the Mining Charter. These investors have shares in South African registered companies, Marlin Holdings Limited and Martin Corporation (Marlin), and RED Graniti SA (Pty) Limited (RED) who have interests in and dominate the South African granite industry. The shareholders of the local companies include offshore companies that are registered in Italy and Luxembourg.
2.2 The investors deem the Act and the Charter to be unfair and discriminatory and to be tantamount to an expropriation of their investments in South Africa. They are therefore claiming R2.207 billion (which they argue is the value of their investments) as compensation from the South African government.
2.3 The claimants are seeking recourse on the bases of two bilateral investment treaties between Italy and South Africa (Italy BIT) and between the Belgo-Luxembourg Economic Union and South Africa.
2.4 The Government of the Republic of South Africa is defending this claim and it has filed his counter memorial and the ciaimants were due to file their response. The matter is set down for a hearing as from 12 April 2010 to 22 April 2010 in the Hague, Ameterdam.
2.5 During the course of 2007 our office briefed Advocate S Nthai SC and appointed Freshfields Bruckhaus Deringer a firm based in Paris to represent our client the Government of the Republic of South Africa in these proceedings.
2.6 The claimants are represented by Webber Wentzel Attorneys and QC's from London.
3. ALLEGED MISCONDUCT OF ADV S NTHAI SC
On the 8 December 2009 Mr Toby T Landau QC based in London and who is acting for the claimants in this matter telephoned Mr Petrochilos a Senior Solicitor in Freshfields Bruckhaus Deringer based in Paris who is acting for our clients in these proceedings and advised him that a certain Mr Mercenaro one of the claimants or representative of the claimants has been having face to face meetings and telephonic conversations with Advocate S Nthai SC our counsel in this matter, regarding among other things, (1) merits of our case, our defences, our technical strategies, possible settlement of the case and possible reward for Advocate S Nthai if the case is settled in favour of the claimants.
We must highlight that the Advocate S Nthai SC acted behind our back and without instructions from us or/and client when he was having meetings and conversations with the said claimants representative. Furthermore note that the claimants are represented by legal representatives in these proceedings and Advocate S Nthai chose not to communicate with his colleagues who are acting for the claimants and he communicated Ewith the claimants who are our opponents in this matter.
It transpired that the conversations between Mr Mercenaro and Advocate Nthai SC were recorded and the claimants attorneys have provided us with transcripts and audio recordings of the face to face meetings held between Mr Mercenaro and Advocate S Nthai SC on the 18th and 20th October 2009 and transcripts of a further sequential telephonic discussions between the two that took place between 3 November and 5 November 2009.
Having read the transcripts and listened to the audio recordings, it appears that Advocate S Nthai SC committed a gross misconduct and acted inappropriately inter alia in the following manner:
(i) Breached his professional conduct;
(ii) Acted unethical;
(iii) Acted without instructions;
(iv) Breached advocate-client privilege principle;
(v) Compromised his clients' case;
(vi) Acted in a manner that sought to benefit his own interests rather than the interests of his clients.
We will highly appreciate given the seriousness of the allegations that have been made in respect of Advocate S Nthai SC that your bodies investigate and resolve the complaints against Advocate S Nthai SC expeditiously in the interest of all concerned.
This matter was also reported to the Tribunal (Professor Vaughan Lowe QC, The honourable Charles N Brower and Mr .Joseph M Matthews) at the International Centre for Settlement of Investment Disputes in Washington DC.
Attached find copies of the said transcripts for your attention and easy reference. The audio recordings will be provided to you if required.
You are therefore requested to investigate this matter and revert to us with regard to action the Council intends to take so that we can report back to our client's and the Tribunal.
Yours faithfully
A M MOSIDI
STATE ATTORNEY (PRETORIA)
(Transcribed from PDF)
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