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  • Writer's pictureLawtons Africa

Lawtons Africa Second Statement 7 June 2023



The recent media releases and publications by Paul O’Sullivan and Media 24 have caused great concern for our staff, clients, friends and colleagues. We wish to allay those concerns and provide you with the true facts:


Fact:

Lawtons Africa is profitable, liquid and solvent. Rumours and communications to the contrary are untrue.


Fact:

Your funds invested with Lawtons Africa are and have always been safe. We are bound by the Legal Practice Act No 28 of 2014. In terms of the Legal Practice Act there are strict rules and regulations that we adhere to in terms of handling Trust monies.

We maintain and balance our Trust accounts on a monthly basis, and the separate Trust funds do not form part of Lawtons Africa’s assets and are separately accounted for. All Trust funds with us continue to be safe and protected in separate Trust accounts in terms of the Legal Practice Act.


Fact:

Lawtons Africa Attorneys were never involved in or implicated in state capture. If you wish to know the true and uncontroverted facts about our history and the unsubstantiated insinuations and misstatements made against us, including those relating to state capture, read on further below.


Our Attorneys were not involved in state capture. On the contrary, they continue to operate independently, fearlessly, professionally and ethically even when placed under pressure (read further below about the recent unprofessional and unethical smear campaign to try to put us under pressure in relation to our professional work for a client in Richards Bay with respect to Gupta-owned Optimum Coal Mine and Optimum Coal Terminal).

Our Attorneys also operate independently, fearlessly, professionally and ethically in relation to all our clients - including when presented with unpopular or popular clients or causes, within the scope, ambit and parameters set by law and the Rule of Law. Any failure of Attorneys, including Lawtons Africa Attorneys, worth their salt, to do so would place the foundations of our constitutional democracy at risk.


The facts concerning Lawtons Africa and our well respected and experienced Attorneys, that have been in the public domain for several years now.

Following a detailed and comprehensive review in 2019 of their conduct in the course of providing professional legal services to clients over the period 2014 - 2017, such reviews having been conducted both internally and as applicable externally by the investigative committee of the Legal Practices Council, no Attorney currently practising at Lawtons Africa (formerly called Hogan Lovells South Africa) has been found on the facts to have ever been involved in state capture, money laundering or corruption, or to have acted unprofessionally or unethically.


Each Attorney currently practising at Lawtons Africa is a fit and proper person, acting consistently, independently, professionally and ethically in all work performed for the firm’s Clients, including through the abhorrent state capture era.


Mr Lavery Modise (labour lawyer) / SARS matter

Over 5 years ago, on 5 December 2017 and 23 May 2018, Mr Modise presented clear evidence and facts to the South African Parliamentary Standing Committee on Finance in relation to the firm’s mandate, advice, report, and hearing chaired by Advocate Terry Motau SC concerning a then suspended employee of SARS. Mr Modise answered all of the committee’s questions. The facts concerning this matter have been publicly available since 2017/2018.


Advocate Terry Motau SC found on the relevant verifiable and admissible facts before him, that there was no basis under South African employment laws to suspend or dismiss or discipline the employee in question. The then SARS Commissioner Tom Moyane announced, untruthfully and to our surprise because the firm and Mr Modise had no relationship whatsoever with Tom Moyane who was not and never was a client of the firm, that the firm (then called Hogan Lovells South Africa) had exonerated the employee.


The fact is that the firm had never exonerated the employee (Advocate Terry Motau SC had exonerated him, independently, and only in relation to the employment matters properly before him at the hearing). The facts are therefore that neither Advocate Terry Motau SC nor the firm had exonerated the employee of his alleged criminal and tax fraud activities because the hearing and law firms simply do not have the authority or power to do so.


Tom Moyane was therefore factually incorrect, and others who had believed him and relied on the error and his misstatements had been misled.


Under the South African Constitution and applicable laws, attorneys can put questions to an alleged criminal, but because the alleged criminal has no obligation to answer such questions, the attorney cannot lawfully verify the facts to the extent they can be admitted and relied on in a hearing or in a Court. So any alleged criminal or tax fraud activities of the suspended employee in question who does not cooperate and answer questions put to him cannot be proved or verified by any law firm and are therefore properly and lawfully required to be investigated by the Hawks and the Tax Authorities, which are empowered to do so by law as they alone are clothed with the necessary investigative authority and powers.


It follows that the alleged criminal (who is innocent until proven guilty beyond a reasonable doubt) must then be charged at the discretion of the NPA and prosecuted by the NPA and, based on the facts that can be proved by the NPA in Court, convicted or acquitted (exonerated) by the independent Court. A law firm cannot force the Hawks or Tax Authorities or NPA to exercise their respective authority and powers.


The efforts, successes and failures of the Hawks, Tax Authorities and NPA are of public record. South Africa has also recently in February 2023 been grey-listed by the global financial crime watchdog the Financial Action Task Force (FATF).


Mr Modise also in 2018 voluntarily submitted and presented the facts to the investigative committee of the Law Society of the Northern Provinces (LSNP), and answered all of the committee’s questions. The LSNP considered the facts, and on 25 October 2018 the investigating committee unanimously ruled that there was no unprofessional conduct on the part of Mr Modise. The LSNP was the competent authority at the time to assess the proper, professional and ethical conduct of attorneys in Gauteng, South Africa.


In addition, the facts were also brought to the attention of the Nugent Commission of Inquiry into Tax Administration and Governance at SARS, appointed by President Ramaphosa on 23 May 2018. The Nugent Commission completed its final report in December 2018, and made no adverse findings against Mr Modise or the firm. The Nugent Commission Report is also publicly available.


The truth is, on the facts and the law, Mr Modise at all times in 2017 and thereafter acted properly, independently, professionally and ethically in the discharge of professional legal services to SARS.


The firm continues to act and still acts for SARS.

The following 2015 - 2017 Court cases involving police matters, and the Judgements of the Courts, are also all of public record.


Mr SJ Thema (litigator) / police matters

In the battles and the war that raged through South Africa under former President Mbeki and President Zuma within the world and factions and layers of spies, forensic investigators, policemen, the 2008 disbanded Scorpions, the Hawks, the NPA, and IPID, and the Minister of Police, it is publicly recorded in the Court cases that the fighting parties with their respective agendas and versions of the facts and truth turned increasingly to the Courts to resolve their internal fights and power struggles, thus testing the Courts, and testing the very boundaries and constitutionality of the laws that governed them at the time.


The legal questions ventilated by the Courts included: Who can lawfully and validly suspend and fire whom, and when and in what circumstances, and whose version of the facts and truth is true, who can be believed and who not, and who guards the guards (who watches over the Head of IPID)? The in-fighting was/is relentless and ugly, as recorded in the Court cases over this period.


The first police matter – the National Head of the Hawks

The firm represented the Minister of Police in January 2015.


The firm was recommended as legal advisers to act for the Minister of Police by Advocate Mokhari SC. This was based on Advocate Mokhari’s experience of working with the firm and with Mr Thema.Under the South African Constitution and the Rule of Law, the Minister of Police is entitled to legal representation. It is also not uncommon in South Africa for advocates to insist on the appointment of a private law firm (not the State Attorney’s office) to assist them.


In this matter, an urgent application had been launched on 15 January 2015 by the Helen Suzman Foundation (HSF) in the High Court, Pretoria, against the then Minister of Police. The HSF wanted the Court to declare the suspension by the Minister of the then National Head of the Hawks as being unlawful, and the appointment of a new National Head of the Hawks in his place as being invalid and unlawful. The urgent application was heard in Court a few days later on 19 January 2015.


According to the Minister of Police, the National Head of the Hawks and the Gauteng Head of the Hawks had both been implicated in the highly politicised 2010/2011 so-called Zimbabwe renditions matter. Following the murder in Zimbabwe of a Colonel in the Zimbabwean police force some time before 2010, there was co-operation between Zimbabwean police and South African police in the Gauteng Hawks. Eight Zimbabweans were apparently arrested by Zimbabwean police in Diepsloot, Johannesburg and illegally delivered to Zimbabwe.


One of the factual issues was whether either or both the National and Gauteng Heads of the Hawks had known of and authorised the co-operation that resulted in the delivery of the eight Zimbabweans back to Zimbabwe.


IPID conducted an internal investigation – and in a January 2014 IPID Report it was concluded that both the National and Gauteng Heads of the Hawks were involved in the illegal renditions and should be criminally charged by the NPA. A new Head of IPID (Robert McBride) was appointed on 3 March 2014. A few days later a second 18 March 2014 IPID Report signed by among others the then just appointed new Head of IPID, found that there was on its findings no evidence implicating the National or Gauteng Heads of the Hawks with the police personnel who co-operated and illegally delivered the 8 Zimbabweans to Zimbabwe.


The Minister of Police commissioned Werksmans Attorneys to investigate the discrepancy between the two IPID Reports.


Having heard argument from Counsel and considered the relevant, verifiable and admissible facts at that time and the applicable law, the Court in this case found on 19 January 2015 that both the suspension and the appointment of a new National Head of the Hawks by the Minister of Police were indeed unlawful.


The second line of related cases – Gauteng Head of the Hawks

Also in January/February 2015, the then Gauteng Head of the Hawks launched an application in the High Court against the Minister of Police, National Commissioner of Police and the Office of the National Head of the Hawks (purportedly occupied by the newly unlawfully appointed National Head of the Hawks) to have a notice placing him under precautionary suspension and the appointment of a new Acting Head of the Gauteng Hawks in his place declared to be illegal and set aside. He also launched a separate application in the Labour Court against the South African Police Service applying to have his dismissal declared procedurally and substantively unfair.


Both applications were successful. (The Gauteng Head of the Hawks was represented by the late Advocate Paul Kennedy SC and Victor Nkhwashu Attorneys Inc.)


The Gauteng Head of the Hawks had been served with a notice of precautionary suspension on 20 January 2015, by the newly (and unlawfully) appointed National Head of the Hawks.

The Minister of Police had then commissioned Werksmans Attorneys to investigate the discrepancies between the two IPID Reports. The Werksmans Report when completed recommended the institution of a disciplinary inquiry in respect of the conduct of the Gauteng Head of the Hawks (paras 14 and 46 of the Labour Court case). The Werksmans attorneys were invited to appear before the State Capture Commission to explain their report.


The firm, with Advocate Mokhari SC, represented the Office of the National Head of the Hawks in the High Court application, and represented the South African Police Service in the Labour Court application. In both cases, after assessing the relevant, verifiable and admissible facts and hearing argument of the advocates, both the applications were successful.


The Labour Court (para 48) handed down judgement some two years later in July 2020 and found, among other things, as follows:This matter in its wholesomeness bears the hallmark of unfairness in the manner that the trumped up charges and subsequent disciplinary enquiry have been vigorously pursued despite no evidence to sustain them. The complicity of compromised personalities at the helm of the police service protecting self interest is palpable. Their wanton exercise of authority and use of power is irrational and reprehensible. It lays bare acute factions within a compromised police service riddled by factions and political interference. In the whole, it is the manifestation of an injustice which has no place in our democratic society based on constitutional principles of just [sic] and fairness.”


The third line of cases – Head of IPID

The third line of related cases dealt with by Advocate Mokhari SC and the firm involved the Head of IPID and the Minister of Police, was heard in the High Court in 2015 and went up to and was confirmed in the Constitutional Court in 2017.


According to the Constitutional Court judgement, the Minister of Police, having regard to the two IPID reports in January 2014 and March 2014, had serious concerns with the second IPID report signed by the new Head of IPID, and commissioned a private law firm Werksmans Attorneys to investigate the production of the two IPID Reports. On 24 March 2015 the Minister of Police placed the Head of IPID on precautionary suspension, and on 6 May 2015 the Minister of Police served a notice on the Head of IPID to attend a disciplinary hearing and charged the Head of IPID for improperly altering, or causing the alteration of, the March 2014 IPID Report to protect the Head of the Hawks and the Gauteng Head of the Hawks, and that he had instructed two others involved in the second IPID Report to act in a manner for the same improper purpose.


The Courts, having assessed the relevant, verifiable and admissible facts at the time, and heard counsels’ respective arguments, confirmed that the Head of IPID successfully challenged the constitutionality of the provisions of the IPID Act, IPID Regulations and Public Services Act which allows the Minister of Police to unilaterally suspend the Head of IPID or initiate a disciplinary inquiry into the conduct of the Head of IPID.


The case with the Head of IPID goes to the heart of the independence of IPID from political interference.


Finally, the removal of the replacement National Head of the Hawks

Finally, the Helen Suzman Foundation and Freedom Under Law NPC bring a successful review application against the Minister of Police (this time represented by the State Attorney’s office) and the Office of the National Head of the Hawks (represented by Advocate Mokhari SC and the firm).


After considering the facts at the time, and hearing argument from counsel, the Court handed down Judgement in March 2017 setting aside the decision of the Minister of Police to appoint the replacement Head of the Hawks.


Mr Brian Biebuyck – BOSASA

Mr Biebuyck left the firm in 2017.

Since before he joined the firm until the time of his departure, Mr Biebuyck acted for BOSASA which was a client of the firm from the time Mr Biebuyck joined the firm. The firm provided a range of professional legal services to BOSASA.


Since 16 January 2019 the State Capture Commission started hearing detailed evidence of BOSASA’s involvement in corruption dating back more than two decades. The firm took a decision in 2019 to cease acting for BOSASA.


When the firm studied the untested allegations concerning Mr Biebuyck, who had left the firm in 2017, of Mr Agrizzi and Mr van Tonder in the State Capture Commission in 2019, in the absence of Mr Biebuyck’s version of the allegations and having regard to a comprehensive review of the firm’s records, there was no evidence of corrupt activities on the part of the firm or on the part of Mr Biebuyck, and the firm could not come to any finding or conclusion.


Nevertheless, as the conduct described by Mr Agrizzi and Mr van Tonder appeared on the face of it to be suspicious the firm complied with all of its reporting obligations under South African legislation dealing with suspicious conduct and anti-corruption.

The firm also co-operated with and provided all of its BOSASA files and records and trust account movements to the S417/418 of the Companies Act Commission of Enquiry conducted by Justice Meyer Joffe into the affairs and transactions of BOSASA.


All investigations and testing of Mr Agrizzi’s and Mr van Tonder’s allegations in the State Capture Commission concerning Mr Biebuyck are under the authority and direction of the competent authorities and neither the firm nor, to our knowledge, Mr Biebuyck has been charged, accused or had any form of complaint lodged against it or him.


Attack on our Constitution and the Rule of Law

We agree with Johan Booysen when he said: “I have absolute faith in our courts”, quoted by Mandy Weiner in her article in the Daily Maverick dated 18 September 2016, entitled “Hollowing out the State: Johan Booysen speaks out”. The forces at work through self-enrichment, profit stripping, and hollowing out of the state, were being countered by even stronger forces forming a resilient resistance – aimed at independent Courts reviewing and overturning the invalid illegal decisions and identifying the unconstitutional laws passed by

Parliament that allowed the political suspensions and firing by the Minister of Police and other officers within the Hawks and IPID described above.


Ordinary South Africans owe a huge debt of gratitude to these individuals, their personal sacrifices, and to the stronger forces that took a stand, and continue to do so, bringing the matters lawfully before the Courts. The work is never complete.


In order for the Courts to operate independently in an adversarial legal system, they need professional Officers of the Court being the attorneys (like Lawtons Africa) and advocates who prepare their client’s case and present their clients version of the facts, and the interpretation and application of the law, to the Judge/s, so that the Judge/s can independently assess the relevant, verifiable and admissible facts, properly ventilate the issues, interpret and apply the law subject to the Constitution, and resolve the dispute between the parties.


Each side to any dispute require and is entitled to legal representation. To attack a side’s right to appoint legal representatives is an attack on our Constitution and the Rule of Law, and reprehensible.


The Judges, advocates and attorneys don’t always get it right and every person makes mistakes. But our legal system is a centuries-old sound and tested system, under-pinned by the Rule of Law, and it is not a kangaroo court system, and we take our work within this system very seriously.


In each of the Court cases referred to above, the Courts reached the right decision.


Lawtons Africa does not defend or justify, and is not responsible for, indefensible unjustifiable actions or decisions of any individual, office or organisation - but we do defend their respective Constitutional right, and the Rule of Law, to be represented by an attorney and counsel, and to have their case and their exercise of their rights and powers under prevailing laws vigorously argued and presented to the Court for a decision and resolution by an independent Court.


Renewed personal vendetta of Paul O’Sullivan / Forensics for Justice

Lawtons Africa is the subject of renewed interest and pressure from Paul O’Sullivan, who believes it is wrong for Attorneys and Advocates to represent the Minister of Police or the National Head of the Hawks in matters involving them and brought to Court where the independent Court must resolve the matters brought before it.


This is because Mr O’Sullivan was arrested in April 2016 by the police and removed from a plane at OR Tambo while the replacement National Head of the Hawks was still in office, appointed unlawfully by the Minister of Police, as resolved by the Court.


According to media reports at the time, Mr O’Sullivan claimed he would sue the then Minister of Police for R100 million damages in a civil claim, which would be a lawful course of action, and a course of action pursued by many South Africans who have suffered because of unlawful abuse suffered by them from individuals occupying positions within the police services. The numerous and ongoing successful and unsuccessful civil claims brought against the Minister of Police in Courts is publicly available.


Under our Constitution and the Rule of Law, the Minister of Police and the National Head of the Hawks and Mr O’Sullivan, just like every other individual, office or organisation in South Africa, is entitled to legal representation in relation to the disputes and any disputes in connection with any abusive behaviour, between them, which they choose to bring to Court.


The timing of Forensics for Justice’s new campaign

Mr O’Sullivan’s renewed vendetta against Lawtons Africa coincided with Lawtons Africa’s client in Richards Bay harbour successfully exercising and defending its rights against one of its shareholders Optimum Coal Terminal, a suspended defaulting shareholder, in which Mr McGowan and Templar Capital have material financial interests.


Lawtons Africa has to date been successfully defending its client in Court against the hostile onslaught against it by Optimum Coal Terminal and all the parties interested in Optimum Coal Terminal and its lucrative coal export rights, and Lawtons Africa will continue to do so, independently, professionally and ethically. This is what we do.


Mr O’Sullivan decided to relaunch his old vendetta against Lawtons Africa at this time, putting additional side pressure on Lawtons Africa when we are representing a client in the middle of hostile litigation and arbitration proceedings, and settlement negotiations.


Mr O’Sullivan has a documented history (see below) of the use of pressure and smear tactics designed to interfere with the outcome of legal and settlement processes and achieve a particular outcome for his clients, which outcomes are selfish and not in the public interest.


Mr O’Sullivan, Sarah-Jane Trent and “Forensics for Justice” launched a new pressure campaign against Lawtons Africa in May 2023 with a tampered with document including a footer reading “Current Client Projects\Danny McGowan – Templar Capital\Lawtons”.

Mr McGowan and Templar Capital have a material financial interest in the outcome of the applicable hostile litigation and arbitration proceedings, and settlement discussions, involving Lawtons Africa’s client.


Accordingly, any client of Lawtons Africa should read any communications from “Forensics for Justice”, Mr O’Sullivan or Sarah-Jane Trent, or any media coverage repeating or relying on such communications, regarding Lawtons Africa, with extreme caution, bearing in mind the facts, circumstances and context and what the Court has concluded about their specialised pressure tactics (see below).


What the Court has to say about “Forensics for Justice” pressure tactics

On 27 July 2020, the High Court of South Africa, Gauteng Local Division, Johannesburg (Case No. 12120/19) – view Judgement here – handed down Judgement against Paul O’Sullivan, Sarah-Jane Trent and “Forensics for Justice” stopping them from smearing a professional (a liquidator in this case), and interfering with and intimidating and harassing witnesses in a pending trial action involving the professional and the “Forensics for Justice” client, for the sole purpose of trying to obtain a settlement of the matter for their client, before the trial could be determined by the Court.


This is what the Court had to say / concluded about “Forensics for Justice”:

  • In relation to the contents of the “forensic report” circulated by “Forensics for Justice”, the Court highlighted the “absence of facts” and “falsity” of numerous allegations framed as “findings” by “Forensics for Justice” (para 79).

  • The “forensic report” of “Forensics for Justice” does not contain facts, and the averments that the “forensic report” does contain “are substantially false” (para 98).

  • The Paul O’Sullivan and Sarah-Jane Trent statements regarding the targeted professional concerned (a liquidator of a pension fund) “reflect an absence of concern” on the part of O’Sullivan and Trent “not only with the truth or correctness of those statements but also with the language used to express them” (para 99).

  • “Forensics for Justice” were not acting in the “public interest” regarding their “investigations” or in compiling the “forensic report”, but instead, “Forensics for Justice” were acting to try and obtain a settlement of an action on behalf of their client, who was motivated by his own self-interest and not the public good (paras 77 and 78).

  • “Forensics for Justice” makes numerous statements in correspondence about the targeted professional that amount to “unjustifiable commentary”, and serve to “degrade and reduce” the targeted professional “in the eyes of those reasonable readers who come into contact with such statements” (para 60). Such statements can be prima facie defamatory of the professional, both personally and professionally (para 61).

  • All actions of O’Sullivan and Trent and “Forensics for Justice” (the publication of the defamatory statements and the publication of the “forensic report”) “served to impede” the targeted professional in attending to his professional functions (para 72).

  • The client in question denied that he instructed O’Sullivan, but O’Sullivan’s correspondence revealed the contrary (para 74). The O’Sullivan correspondence revealed that the client in question and “Forensics for Justice” were not acting in the public interest (para 77).

  • When “Forensics for Justice” made persistent threats intended to intimidate a witness (an elderly lady) in the pending trial in question, it did so to try to bring about the termination of the trial action prior to the action being determined by the Courts, as was the purpose of the smear campaign against the targeted professional, and “Forensics for Justice” was interfering with the professional’s right to a fair trial (paras 120 and 123).

In conclusion –

All of the facts concerning the firm’s current attorneys have been in the public domain and have been in the public record, for several years.


There are simply no facts on which to contend that any of our current attorneys have been involved in any way in state capture.


The recent unsuccessful and hostile Court battles launched by Mr Daniel McGowan and Templar Capital in respect of his campaign to acquire access to the lucrative Optimum Coal export rights at Richards Bay and the footer in Paul O’Sullivan’s attachment to his letter “CURRENT CLIENT PROJECTS\DANNY MCGOWAN – TEMPLAR CAPITAL \ LAWTONS” require full ventilation in the appropriate forums.


In the meantime, rest assured, Lawtons Africa will continue with its proud 131 year history of providing professional and ethical legal services to its clients.


Statement issued by Lawtons Africa 7 June 2023

 

Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of approximately lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com

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