By: Hogan Lovells
Hogan Lovells’ South Africa Chair, Lavery Modise, has published a detailed response, entitled ‘Sunlight over Shadow’, to accusations made by Lord Hain in the British House of Lords on Monday,15 January 2015, about the firm’s work for the South African Revenue Service (SARS) relating to Jonas Makwakwa.
Modise, a former Labour Court judge and Chairperson of the General Public Service Sectoral Bargaining Council, says in his rebuttal that Lord Hain “used his parliamentary privilege to spread and perpetuate allegations about me and my firm that are simply untrue.” Modise gave evidence about his firm’s work for SARS to the cross-party and independent South African Parliament Standing Committee on Finance on 5 December 2017.
According to Modise, “I reject his remarks and consider them to be the antithesis of our professional standards and conduct. Lord Hain did not take up our offer to discuss any of those issues before his statement to the Lords. When my colleague in London sought to brief other members of the House of Lords before Lord Hain made his claims, Lord Hain dismissed those efforts as ‘a hostile act’.”
In the document, Modise says: “As a firm of attorneys, we put the rule of law first and foremost, and all of us acknowledge that truth and democratic discourse are an essential part of upholding the rule of law.”
Modise’s firm has long-fought against unfair government acts. It acted free of charge for the South African Traders Association to oppose “Operation Clean Sweep” when 3,000 informal traders were removed from their trading posts in the inner city of Johannesburg. It also works with the Rule of Law Advisory team to provide training for ministers in Parliament on the importance of the rule of law on which the Constitution of South Africa is founded.
Answering Lord Hain’s question to the British peers as to what Hogan Lovells had to hide about its work for SARS, Modise writes: “Nothing. As has been stated in my evidence to Parliament, our report does not exonerate Jonas Makwakwa and does not exonerate him from possible charges that could result from the outcome of the investigations into his tax affairs conducted by PwC as well as the criminal investigation conducted by the Hawks.
“We advised SARS that if the tax and criminal investigations conducted by others revealed that an offence had been committed, SARS would need to bring disciplinary proceedings against Jonas Makwakwa. We have never advised and have not been asked to advise on whether Jonas Makwakwa is guilty of any criminal/tax offences and have not exonerated him of any.”
He also sought to clarify seemingly conflicting previous media statements made by SARS and Hogan Lovells: “SARS issued a press release on 30 October 2017 that implied that we had investigated the Financial Intelligence Centre’s (FIC) allegations and said we had recommended that disciplinary action be taken against Jonas Makwakwa. Only the latter was correct; and we issued our own press release on 3 November 2017 that made it clear that we had not been instructed to investigate the FIC allegations, and the scope of our work was limited to identifying whether any misconduct had been committed by Jonas Makwakwa and Kelly Ann Elskie as employees of SARS.
On 27 November SARS issued another press release that essentially stated that we had investigated the FIC transactions. We had no control or influence over that statement and were obliged to keep repeating what we said on 3 November.”
Modise also strongly rejects Lord Hain’s questions about his relationship with SARS Commissioner, Tom Moyane. He says: “There is no relationship. I first met Tom Moyane on 15 September 2016 and it was in relation to our work. I met him at two further meetings in March and June 2017. Others were always present from SARS and/or Hogan Lovells and he left our meetings before they had ended. I am personally affronted by Lord Hain’s insinuation in his statement and tone of questioning that there may be any form of improper relationship with Tom Moyane. I am delighted to disappoint his Lordship on that score.”
In his analysis, Modise recognizes Lord Hain’s work for South Africa: “I acknowledge and thank Lord Hain for his work over many years in support of South Africa and share his concern regarding corruption and state capture in our country. His work and dedication to the people of South Africa is without question. In many ways we are his natural allies, not his opponents. We have championed the same causes. This is what makes his actions and lack of engagement with us doubly disappointing and saddening.”