Modise vs Daily Maverick

SUMMARY

The headline to the story in dispute read, Legal multinational Hogan Lovells apologises for role in State Capture and exoneration of senior Sars official (published on 25 January 2023).

This ruling by Press Ombud Herman Scholtz was based on the Press Code that became effective on 30 September 2022.

 

The article was about an “apology” by international law firm Hogan Lovells (HL) for a 2017 report that had exonerated former Sars official Jonas Makwakwa. The latter happened while Lavery Modise had chaired the company – which insinuated that he did not do his job properly.

The word “apology” needed quotation marks, Scholtz said, as HL had merely expressed its “regret”.

Modise mainly complained that he was not given a right of reply; that the headline was inaccurate in that he had not “exonerated” any senior SARS official; that the article omitted to state that the Law Society had exonerated him; and that the report had tarnished his dignity and his unblemished professional reputation.

Scholtz upheld the complaint about a right of reply as:

• Modise’s previous responses should have been repeated; and
• the apology was a new element in the story, which made him a subject of critical reportage – which is why Daily Maverick should have obtained his comments prior to publication.

He added that, while the article did not insinuate that Modise was part of the State Capture project, the nature of the reportage about him was such that it did tarnish his dignity and reputation.

The publication was directed to apologise for these breaches of the Press Code.

It also had to correct an inaccurate statement.

The complaint about the headline was dismissed, mainly because it fairly reflected the content of the article.

 

THE RULING ITSELF

Ruling by the Press Ombud

Date of article:                    25 January 2023

Headline of publication:   “Legal multinational Hogan Lovells apologises for role in State Capture and exoneration of senior Sars officials”

Author:                                  Marianne Thamm

1. Lavery Modise (“Modise”), former partner of law firm Hogan Lovells, is the complainant and is represented by Dumisani Ngcobo from Ngcobo D Inc.

2. The author of the article, Marianne Thamm (“Thamm”), responded to the complaint on behalf of the publication.

The essence

3. Daily Maverick published an article about a statement issued by international law firm Hogan Lovells having reportedly “apologised…for a 2017 report exonerating (former Sars official) Jonas Makwakwa”.

4. Although the article is focused on Hogan Lovells’ “apology” and the recent activities of Makwakwa, Modise’s name appears in paragraphs 5-7 of the article:

“It was Hogan Lovells South African Chair, Lavery Modise, who, on behalf of Hogan Lovells, had conducted the investigation into Makwakwa and his romantic partner Kelly-Anne Elksie.

“Later Modise was to tell Parliament’s standing committee on finance that he had not been mandated to investigate ‘criminal aspects of the financial transactions’.

“Modise said he had left it to the Directorate for Priority Crime Investigation (DPCI) to probe Moyane (sic) and Makwakwa who have both escaped prosecution.”

5. Modise’s complaint is that:

5.1 He was not approached for comment prior to publication.

5.2 “The heading of the article incorrectly states that I exonerated senior SARS official. I did not exonerate any senior SARS officials.”

5.3 The Law Society (predecessor to the Legal Practice Council) exonerated him and Hogan Lovells from wrongdoing in the SARS matter, but this was omitted from the article.

5.4 Hogan Lovells’ statement issued on 25 January 2023 is not an apology at all. In any event, he left Hogan Lovells in 2019 already and cannot be bound by a statement made by a law firm he is no longer involved with.

5.5 The article affects his dignity and unblemished professional reputation, which includes stints as acting judge of the Labour Court.

6. It also became clear during the exchange of correspondence between the parties that the article contained a factual error. The sentence that reads Modise said he left it to the DPCI to probe “Moyane” and Makwakwa should, in fact, have read he left it to the DPCI to investigate Elksie and Makwakwa. Daily Maverick offered to correct this error.

7. Daily Maverick says in response to the complaint:

7.1 Modise’s association with Hogan Lovells is well-known.

7.2 Modise’s verbatim presentation to parliament was published through a hyperlink in the article.

7.3 “There is no suggestion in the story that Mr Modise exonerated anyone. He did his job and recommended to (then SARS Commissioner Tom) Moyane that they be criminally charged.” Also: “Mr Modise’s suggestion that it links him personally to State Capture is difficult to understand and cannot stand.”

7.4 It is not common practice for journalists to seek comment from individuals referred to in passing when no new allegations or evidence of malfeasance or charges is being brought to light. There is no allegation made against Modise in the story.

7.5 Hogan Lovells’ statement was indeed an apology. This is evident through the use of the words “deeply regret” in the statement.

Alleged breaches of the Press Code

8. The factual inaccuracy through reference to “Moyane” rather than “Elksie” is a contravention of clause 1.1. of the Press Code requiring accuracy. This error was regrettably still contained in the online article as at date of writing of this ruling. I would have expected the publication to correct the obvious, and presumably bona fide error, by now. A finding of a breach of clause 1.1. is therefore appropriate.

9. Modise specifically invokes clause 1.8. of the Press Code that reads:

“The media shall seek, if practicable, the views of the subject of critical reportage in advance of publication, except when they might be prevented from reporting, or evidence destroyed, or sources intimidated. Such a subject should be afforded reasonable time to respond; if unable to obtain comment, this shall be stated;”

10. The complaint is pertinently aimed at the headline of the article. Clause 10 of the Code prescribes:

“Headlines…shall not mislead the public and shall give a reasonable reflection of the contents of the report or picture in question.”

11. Clause 3.3. requires the media to exercise care and consideration in matters involving dignity and reputation. An individual’s right to reputation may be overridden if it is in the public interest and one of the other grounds of consideration are present. Those grounds are: Reportage based on facts that are true or substantially true, protected commentary, accurate and fair reportage of privileged proceedings, or if it was reasonable to do so based on acceptable principles of journalistic conduct.

Sorry, we’re not sorry?

12. At the heart of the complaint is the true nature of the Hogan Lovells statement. Daily Maverick says a consideration of the meaning of the word “apology” falls outside of the ambit of the complaint. But words have meaning and it matters greatly within this context.

13. I was provided with the Hogan Lovells statement and it is necessary to quote extensively from it. It is headlined, “We regret our work was associated with State Capture”. Notably absent from the statement is the word “apology”.

14. Regret is hardly the same as an apology. Regret that one’s work “was associated” with State Capture is also hardly an acknowledgement that Hogan Lovells did anything wrong.

15. This is even more evident if one considers the statement as a whole. I focus on those sentences that arguably get closest to something resembling an apology and omit those that are overly transparent public relations jargon:

15.1 “In 2017, Hogan Lovells found its name connected to State Capture as a result of work that former partners performed for SARS on an employment matter.”

15.2 “We deeply regret that our work was associated with State Capture.”

15.3 “We have changed our structure and our processes and given our experience, we are even more careful about the work we do for our clients and how our name may be used in that context.”

1. The statement draws a distinction between the views of Lord Peter Hain, the firm’s critic, on the one hand, and Hogan Lovells on the other. Lord Hain is emphasised to “stand by his views”, with the implication that Hogan Lovells and Lord Hain’s still hold differing views.

16. One searches in vain for anything in the statement that could be seen as an acknowledgement of wrongdoing. Hogan Lovells says it regrets that its name was dragged through the mud. In fact, it actually appears to suggest that Hogan Lovells received unfair criticism and that the firm and its work was used (abused?) by third parties for their own agendas. Given this “experience”, Hogan Lovells promises to be “even more careful” in future about “how (their) name may be used”.

17. Also of some importance is the fact that the statement refers to work done by unidentified “former partners”.

The need for pre-publication comment

18. Daily Maverick says there was “no allegation against Modise” and that the article was “simple reportage”. Clause 1.8. does not require journalists to seek comment only from someone who faces allegations. It requires comment from subjects of any critical reportage.

19. This office has already decided that clause 1.8. does not always impose an obligation on journalists to seek pre-publication comment when recounting historical facts that are already in the public domain. The rationale was set out by the adjudication panel in John Steenhuisen & Others vs Mail & Guardian (13 February 2023):

“It cannot be practicable to have a blanket requirement to seek pre-publication comment from a subject of historical critical reportage when reportage in the public domain is repeated. If this were so, some of the more controversial figures in society would have to field journalists’ calls on a constant basis to merely repeat their version of events.”

20. This statement in the ruling was followed by two important qualifications:

20.1 Firstly, the reportage must still be fair, balanced and accurate. If the subject of critical reportage had a widely known response to the allegation, this ought to be repeated as well.

20.2 If anything is added to the repetition of the historical facts, it does not amount to a mere repetition of information in the public domain and there would be an obligation on journalists to seek pre-publication comment.

21. Daily Maverick rightly points out that there has been wide coverage about the Hogan Lovells matter and that Modise has been widely quoted on the issue. It is further true that Daily Maverick, in the 2023 article in question, reported some of what Modise told Parliament back in 2017.

22. Had the article appeared prior to Hogan Lovells’ statement, Daily Maverick would probably have had no obligation to seek Modise’s comments if this was simple recounting of historical facts.

23. But a fundamental shift has occurred. The article’s reason for existence is that Hogan Lovells “apologised”, according to the publication. A reasonable reader would ascribe only one meaning to the Daily Maverick article: Hogan Lovells has capitulated. It “apologised” for a 2017 report “exonerating Jonas Makwakwa”. “Six years later” there was a “moral victory for Lord Peter Hain who has relentlessly spearheaded a campaign from the UK House of Lords for multinationals (such as Hogan Lovells)…to be held accountable”. And this “age of accountability”, as the sub-headline calls it, has arrived.

24. Under a sub-heading in the article’s body, “Big fish off the hook”, Daily Maverick directly juxtaposes the “apology” of Hogan Lovells and “moral victory” of Lord Hain to the historical recount that it was Modise, described as the South African chairperson of the firm (and not former chairperson), who told Parliament it wasn’t Hogan Lovells’ mandate to do a criminal investigation.

25. Reading the first seven paragraphs of the article, the overall message is clear: Hogan Lovells, as per Modise, said XYZ in 2017, but now, in 2023, made a U-turn to be held accountable.

26. That there is no explicit allegation against Modise is not the yardstick in considering clause 1.8. The yardstick is whether the presentation of the article makes Modise a subject of critical reportage. In my view, it does.

27. The supposed U-turn is not a recital of historical events. It is this insinuation of a U-turn – coupled with juxtaposition of Modise’s justification for Hogan Lovells’ work in 2017 – that triggered the audi alteram partem principle.

28. There is merit in Modise’s complaint that he has not been involved in the firm since 2019. He says Hogan Lovells does not speak on his behalf.  Modise was also not identified in the Hogan Lovells statement. But even more fundamental is whether Hogan Lovells indeed capitulated on the defence Modise put up on the firm’s behalf in 2017. I already set out why this remains entirely unclear.

29. In its response, Daily Maverick says it included in the article the “word-for-word presentation” of Modise’s 2017 presentation to Parliament by using a hyperlink. The inclusion of Modise’s presentation for context is commendable. However, two things need to be said:

1. Hyperlinks must be effectively utilised if it is to serve a purpose. I was alerted to the inclusion of the document through Daily Maverick’s response to the complaint and did not initially notice it in the article. Upon a focused search for the hyperlink, it emerged that the document was included through a hyperlink of the words “Lavery Modise”. This is confusing. If the intent is to provide the full document of Modise’s presentation to Parliament in 2017, surely it would be more appropriate to link the document to the words “was to tell Parliament” or Modise “said” to Parliament.
2. Be that as it may, the inclusion of Modise’s historic words does not cure the dilemma of a lack of pre-publication comment as the historic words naturally did not address the alleged U-turn.

30. If Modise was approached for comment, he likely would have said what he is saying now: The Hogan Lovells statement is not an apology, does not reflect any change in his view or justification of his work, and that he never exonerated anybody at SARS. In a letter addressed to the editor, which was not published, Modise goes on to explain that he did not simply leave the allegations against Makwakwa and Elksie to the Hawks, but had a meeting with the Hawks to provide them with the relevant information obtained through his investigation. He also notes that the Law Society (being the predecessor of the Legal Practice Council) investigated his conduct and found that he did not act unprofessionally.

31. If Daily Maverick wanted to link Modise personally to the “apology” by Hogan Lovells, it was not only practicable to seek his comment, but necessary.

32. Daily Maverick therefore breached clause 1.8. of the Press Code.

Reputation

33. The gist of Modise’s complaint on this score is that he is an individual and lawyer in his own right distinct from his earlier involvement with Hogan Lovells. Ngcobo says his client “has the right to vigorously protect and defend his good name and professional reputation” and the headline of the article “clearly suggests that as the professional who conducted the investigation (Modise) played a role in State Capture by exonerating Mr Makwakwa”.

34. The reputational harm to a professional whose erstwhile employer is said to have publicly “apologised” for the work he did for them, is apparent.

35. I do, however, agree with Daily Maverick that it is a stretch to say the article insinuated that Modise was part of the State Capture project. There is sufficient context in the article to clarify what is referred to as Hogan Lovells’ alleged “role” in State Capture.

36. Far less convincing is the following submission from the Daily Maverick:

“There is no suggestion in the story that Mr Modise exonerated anyone. He did his job and recommended to Moyane that (Makwakwa and Elksie) be criminally charged.”

37. In my view, both statements pose difficulties for the publication.

38. Ngcobo is correct when he says the headline of the article “cannot simply be wished away”. The headline expressly states that Hogan Lovells apologised for the “exoneration of senior Sars officials”.

39. But it goes further than the headline. The introduction to the article reads: “While the multinational legal firm apologised this week for a 2017 report exonerating Jonas Makwakwa…”

40. It goes further still. The article then says, “It was…Modise..who…conducted the investigation…”

41. The Appeals Panel, in Mail & Guardian vs Jessie Duarte (21 June 2016) endorsed the view that a reasonable reader reads an article as a whole. This includes the headline, sub-headline, (sub-)headings, picture captions, and obviously the body of the article. A reasonable reader does not seize into a specific aspect of the article to jump to conclusions. (See: Hasina Kathrada vs Times Live (29 September 2021))

42. What those cases illustrate, is that a reader might form a skewed view of something if they were to seize into a particular feature in isolation, but immediately establish the proper position upon reading the article as a whole.

43. In this matter, the reasonable reader test does not assist the publication. The explicit words of the headline (that there was an apology for the report that exonerated SARS officials) is never qualified or clarified in the remaining elements of the article.

44. On the second aspect of Daily Maverick’s submission, the problem is that the article does not actually state that Modise “did his job” and “recommended to Moyane that (Makwakwa and Elksie) be criminally charged”. If it did, I suspect Modise would not have been as aggrieved as he is.

45. The factual position is that Hogan Lovells was contracted by SARS as labour law advisers. SARS sought advice on disciplinary steps to be taken against Makwakwa and Elksie. Hogan Lovells said the allegations of criminal conduct ought to be investigated by the Hawks as it falls outside the scope and powers of labour lawyers. The lawyers do not have investigative powers the police have to subpoena information and compel cooperation from role-players and in any event cannot make a finding of criminal liability or not. Hogan Lovells also said Makwakwa and Elksie would undoubtedly be guilty of misconduct from a labour law prism if they were to be convicted of certain crimes, which had to be investigated. To that end, Modise said, he set up a meeting with the Hawks to share information as the latter already initiated a criminal investigation. Hogan Lovells still advised SARS on other aspects of the allegations against the duo. A disciplinary hearing was indeed held and chaired by a senior counsel.

46. This nuance is lost in the article.

47. Daily Maverick did not report that Modise “did his job”, as is now submitted. The publication reported: “Later Modise was to tell Parliament’s standing committee on finance that he had not been mandated to investigate ‘criminal aspects of the financial transactions’.” A reasonable reader would not take from that sentence, stripped from context, that he “did his job”. To the contrary, the reasonable reader sees only what appears to be an excuse for not “doing his job”. Something for which the reasonable reader now believes Hogan Lovells “apologised”.

48.  Daily Maverick also did not report that Modise “recommended criminal prosecution” of Makwakwa and Elksie. The article says: “Modise said he had left it to the (Hawks) to probe (Elksie) and Makwakwa who have both escaped prosecution.” “Leaving” something to the Hawks is hardly a recommendation of criminal prosecution. “Leaving” something to the Hawks would also not lead a reasonable reader to believe that Modise set up a meeting with the Hawks to hand over information.

49. The additional sting of the duo having “escaped prosecution” – lumped together in one sentence with Modise’s alleged (in)action by “leaving” the matter to the Hawks – is not helping. It is, after all, not Hogan Lovells or Modise who had any authority or say in whether the duo would be criminally prosecuted or not. Only the Hawks and prosecuting authorities could do that.

50. Clause 3.3. prescribes that an individual’s right to dignity may only be overridden if it is in the public interest and other grounds of justification are present. In this matter, the defence would have been that the reportage was true or substantially true.

51. For all the reasons set out above, the statements affecting Modise’s reputation cannot be justified. It is not true that Modise’s report exonerated anybody, even though it is implied in the article. It is also a distortion that Hogan Lovells apologised for Modise’s report, which is in effect what the article intimated.

52. Daily Maverick therefore breached clause 3.3. of the Press Code.

Other complaints

53. Modise expressly complains about the headline of the article. While it is true that the headline was problematic, clause 10 deals only with misleading headings that do not give a fair reflection of the article. In this matter, there is no disconnect between the headline and the contents of the article. The headline did not mislead the public as to the contents of the article. The harmony between the headline and body of the article is part of the problem in this case. If there is a factual error or distortion in the headline, it is in my view more appropriate dealt with by the number of Press Code clauses dealing with accuracy, fairness, and balance than to test the headline against clause 10.

54. Clause 1.2. of the Press Code requires the media not to depart from the facts by distortion, exaggeration or misrepresentation, material omissions, or summarization, while clause 1.1. requires not only accurate but also fair reporting.

55. Although these clauses were not raised in the complaint, the findings above would probably also fit under clauses 1.1. and 1.2. of the Press Code. There is considerable overlap of principles in the different clauses of the Press Code. As was noted in Pastor Alph Lukau & Others vs City Press (4 December 2022), this overlap in principles often leads to a domino effect in adjudication of complaints.  It was held that a sensible approach is not to take an overly technical approach by viewing each clause separately, but to take a pragmatic approach and confine the issues to the most appropriate – often the most serious – transgressions.

56. In National Arts Council vs The Citizen (15 August 2022), it was said:

“The aim is to test the published articles against the word and spirit of the Press Code in a way that holds the relevant publication accountable but without attempting to throw the proverbial book at publications and finding them in breach of a litany of clauses that distorts the true extent of any transgressions.”

57. In following this approach, I confine the findings of breaches to the most serious clauses, being Modise’s reputation (clause 3.3), failure to obtain pre-publication comment (clause 1.8) and the accuracy error (clause 1.1). The sanction below will adequately address the other issues.

Sanction

58. Daily Maverick breached clauses 1.1, 1.8, and 3.3. of the Press Code. The infringements are Tier 2 (serious) infringements, as defined in the Complaints Procedure.

59. Modise sought a right of reply and provided this office with the letter he sent to the editor. The letter is not objectionable or overly lengthy and there is no reason why it cannot be reproduced at the bottom of the article, subject to the publication’s ordinary policies on editing of letters from readers.

60. Daily Maverick is directed to:

60.1Apologise to Modise for not seeking his comment prior to publication and for tainting his reputation. The publication should also draw readers’ attention to the fact that the article was amended after publication, as elaborated on below.

60.2 The apology is to appear at the top of the page and readers are to be directed to Modise’s right of reply at the bottom of the article.

60.3 The factual error by referring to Moyane instead of Elksie is to be corrected in the article itself.

60.4 The headline and introduction to the article need to be amended in line with the findings above to cure any reputational harm for Modise. As long as his name is linked to the article, the impression cannot be created that Logan Hovells apologised for Modise’s work or that Modise “exonerated” Makwakwa.

61. The wording of the apology, right of reply, and changes to the article shall be approved by the Press Ombud prior to publication.

Appeal

The Complaints Procedure lays down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at [email protected].

Herman Scholtz

Press Ombud

7 August 2023