Publication: Noseweek Issued: Date: 2003-08-01 Reporter: Arthur de Kock

FirstRand and Mac




Date August 2003, Issue 48


Arthur de Kock

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We act for the FirstRand banking group in writing to you. The report "For whom the road tolls" in nose47 has caused the group considerable distress. It is untrue, derogatory and defamatory in a serious degree.

It is not our intention to deal with every allegation, statement of fact and innuendo in the report. There are factual statements that are incorrect (see reports on pages 6-13). You could have obtained the correct facts with ease. Your failure to do so leads to only one inference namely that your report is malicious.

FirstRand through its attorneys, assisted by forensic auditors, is endeavouring to complete its own investigation in the shortest possible time.

FirstRand has been hindered by the fact that the Sunday Times refused to make available the evidence they had to FirstRand's attorneys. There is (however) no truth in your speculation that FirstRand fears what the Sunday Times may know in addition to what they have published.

There is no truth in your speculation that the appointment of Mr Maharaj and Mr Gordhan (by FirsRand) is an example of the "swing door" practice. (Their) appointment was unrelated to the bid for the toll road. FirstRand has not participated in any improper conduct.

Any decision FirstRand might come to regarding the position of Mr Maharaj as a director will be based on the facts gathered by its attorneys and forensic auditors.

Your statement that the general public should not rely on the objectivity of FirstRand's attorneys is unjustified, malicious and in itself defamatory in a serious degree.

On behalf of First Rand we demand that you retract every statement, fact, allegation and speculation regarding FirstRand in the report "For whom the road tolls" and apologise unreservedly for publishing the report.

That retraction and apology would not necessarily be an end to the matter. FirstRand reserves all its rights and legal remedies against noseweek. It will pursue such remedies as it is advised, civilly and criminally.

Editorial reply: And you (who believe yourselves to have been defamed by us in a "serious degree") will presumably be doing the advising? Speak of conflict of interest! We trust you will remain civil and not act criminally in your pursuit of us, as tempting as you might find the latter proposition.

Jokes aside, by your own account you act for FirstRand. Your client's directors and senior executives- who instruct you - are Mr Maharaj's colleagues and employers. It would be only natural if they had developed some loyalty to him. At the very least, your client has a public relations interest in a positive outcome to your enquiry. As attorneys, you are paid to serve your client's interests. Is it that unreasonable to suppose you might even try to keep them happy? There is nothing sinister about that.

But when you attempt to deny your client's interest and your obligation to serve it - in effect attempt to hide a conflict of interest - that's a different matter.

These are all general statements derived from a general understanding of human nature, and are not based on any particular knowledge of, or insight into, your character or those of your client's directors.

The fact is that, on your client's instructions, you are in all probability pre-emptying the outcome of a police enquiry and possibly the judgement of a court of law - with a private investigation funded by a party with a potential interest in the outcome (and those whose interests you serve).

We are relieved to hear your outraged- if somewhat pious- protestations of innocence and objectivity. But, whichever way you look at it your investigation is intended to reassure the public, in your client's commercial interest. Whatever merit you may intend it to have, it looks bad. We remain convinced that from a public interest point of view - if not your own- it's a bad idea.

We invite our readers to note your strong objections to our report and declaration of innocence of any wrongdoing (Also see page 7 for FirstRand's own letter). As for you concluding threats could it be a case of gogga maak vir baba bang? C'mon, Mr de Kock, you and I are too old for that game!

With acknowledgements to Arthur de Kock (Hofmeyer Herbstein & Ginwala Inc. Attorneys, Sandton), the Editor and Noseweek.