/ 22 November 2017

Outing of KPMG for ‘Guptafication’ role could have powerful knock-on effects

The South African Revenue Service hired Hogan Lovells to look into possible fraud and money laundering by two Sars employees
The South African Revenue Service hired Hogan Lovells to look into possible fraud and money laundering by two Sars employees

Hollywood producer Harvey Weinstein has rightly been condemned for his repeated, outrageous assaults on women. The one positive aspect of this sorry tale of violence, abuse of power and cover-ups is that many women are now coming forward to hold these predators accountable.

Once one powerful person is held accountable, it appears that this expands the scope of public accountability.

Though in a very different context, the manner in which accounting giant KPMG was outed for its support of the “Guptafication” of South Africa has had a knock-on effect and is beginning to compel further questions about the professional duties of other firms, and not only in the accounting field.

Attorneys Hogan Lovells are now in the glare of public scrutiny. Styled as a multinational firm, they are now struggling to explain their exact mandate and role, and hence the nature of the report they produced for the South African Revenue Service (Sars) in the Jonas Makwakwa affair.

According to reports, Hogan Lovells claims it did not investigate the nature of the suspicious transactions worth more than R1-million by Makwakwa and his partner, Kelly-Ann Elskie, as reported by the Financial Intelligence Centre.

Hogan Lovells claims its mandate was limited in scope and did not include these transactions. But then what misconduct did they investigate? It was surely obvious that the alleged misconduct had to be linked to the suspicious transactions.

Remember that Sars claimed Makwakwa was back at work, after more than a year on suspension, because of the outcome of the Hogan Lovell report. So what precisely did the law firm do? Yet again, a multinational professional firm is struggling to provide a full or understandable explanation.

The issue of professional ethics is rightly being debated. So what about the Bar, an institution that justifies its role on the basis of the “taxi-cab rule” — if available, the advocate must take the case. In this connection, the Bar refers to the following rule, titled Duty to Accept Briefs: “Counsel is under an obligation to accept a brief in the courts in which he professes to practise, at a proper professional fee, unless there are special circumstances which justify his refusal to accept a particular brief. In particular, every person who is charged before the court has a right to services of counsel in the presentation of his defence. Subject to what has been said above, it is the duty of every advocate to whom the privilege of practising in courts of law is afforded, to undertake the defence of an accused person who requires his services. Any action which is designed to interfere with the performance of this duty is an interference with the course of justice … Counsel may decline a specialist brief if he considers himself not competent to accept the brief.”

This rule, derived from the English Bar, applies in many countries: Scotland, Northern Ireland, the Republic of Ireland, New Zealand, Australia, India, Hong Kong, Malaysia and Nigeria (although, in the case of Nigeria, for criminal law only).

Notwithstanding the widespread acceptance of this rule, two questions that flow from our history arise. In the apartheid era, many counsel would refuse to take a case involving the defence of detention without trial, in that such an argument was, in effect, a defence of the licence to destroy the very foundation of the legal system. In the present context, the question arises as to the act of representing parties who, by dint of activity that has never been denied by any substantive justification, create a parallel state and thereby destroy key ramparts of the constitutional structure.

Let’s accept that even such people are entitled to a proper defence in a criminal trial. The question remains: Should the taxi-cab rule apply to taking fees that are sourced in suspicious transactions and then arguing a civil case that, if successful, manifestly sets back constitutional principles and increases the kind of activity documented so luminously in Jacques Pauw’s book The President’s Keepers: Those Keeping Zuma in Power and out of Prison? Is there not an overarching fiduciary responsibility to core constitutional values among the legal profession? And can these trump the taxi-cab rule when it applies to noncriminal cases?

The second issue arises out of the disturbing but excellent book Khwezi by Redi Tlhabi. The author documents the rape trial of Jacob Zuma and, in particular, the cross-examination of his accuser, Fezekile Kuzwayo, known as Khwezi. For anyone concerned with the integrity and legitimacy of the legal system, it makes for harrowing reading.

The interminable cross-examination flips the roles: Khwezi rather than Zuma becomes the accused, and with it the fear is compounded for any complainant in a rape trial — why come forward when you are turned into an accused? Again, we must accept that a defence advocate must pursue the defence to the best of her or his ability, but how far does this extend?

In the Zuma rape case, it appears that the cross-examination went way beyond relevance to the trial. This raises profound questions about the conduct of a rape trial, including the role of the presiding judge in ensuring a balance between a rigorous defence and the dignity of the complainant.

It is, in short, high time for the legal profession to have a much-needed, difficult conversation.