Joint action relating to probe into Bell Pottinger's conduct
18 July 2017
The Helen Suzman Foundation, Section27 and Save South Africa have noted Bell Pottinger’s “unequivocal and absolute apology” of last week, in relation to the work it had undertaken over the past year for Oakbay and the fact that it has commissioned an international law firm to review the work done in that regard.
The above three organisations, acting jointly, have now approached Bell Pottinger with a request for access to the terms of reference and all information which will form the basis of the investigation which is to be undertaken by the law firm Herbert Smith Freehills LLP.
This request flows from the intention of the Helen Suzman Foundation, Section27 and Save South Africa, to make recommendations to the relevant UK regulatory bodies, in order to assist these bodies in coming to a proper understanding of the social, economic and potential legal implications of Bell Pottinger’s conduct.
These three South African public interest organisations are concerned that the impact of Bell Pottinger’s conduct should be viewed in the correct context by Bell Pottinger’s own senior management, by the UK regulatory bodies and by the public at large. In arriving at any conclusions about Bell Pottinger’s conduct, it is plainly necessary to have an appropriately informed understanding of South Africa’s constitutional project, the legal framework, its history regarding race and sectarian politics, andthe challenges which the country faces.
These organisations are hopeful that, in light of the expressed commitment in its apology to accountability and transparency, Bell Pottinger will respond positively to their approach.
Text of letter from Webber Wentzel to Mr James Henderson, Chief Executive, Bell Pottinger, 17 July 2017
Investigation into Bell Pottinger public relations strategy in South Africa
1. We represent the Helen Suzman Foundation, Section27 and Save South Africa ("our clients"). Our clients are South African public interest organisations concerned with, amongst other things, the protection of our constitutional project and democracy. Our clients have many years of experience in the field of public interest litigation, including challenges to the exercise of public power.
2. Our clients have been following the recent revelations and investigations that have led to the "unequivocal apology" issued by Bell Pottinger last week, in which it accepted responsibility for the "offensive" campaigning and race based narratives pertaining to the concept of "economic apartheid" in the Republic of South Africa.
3. Our clients have noted, in addition, that, in the apology issued by Bell Pottinger, you have indicated that Bell Pottinger recently commissioned a probe by the law firm Herbert Smith Freehills LLP into the actions of the company.
4. In the apology you indicate that: "At various points throughout the tenure of the Oakbay account, senior management have been misled about what has been done," and stressed that the Herbert Smith investigation would "be completed in the next few weeks. We intend to publish the findings of that report and take appropriate action."
5. We are aware that the Democratic Alliance (South Africa's leading opposition party) has complained about Bell Pottinger's actions to two UK regulatory bodies, the Public Relations and Communications Association ("PRCA") and the Chartered Institute of Public Relations ("CIPR"), and that earlier in July the PRCA launched its own investigation (according to the Financial Times – see here).
6. Our clients assume that the investigations by Herbert Smith Freehills LLP are intended to assist Bell Pottinger to respond appropriately and transparently to the UK regulatory authorities, and also to the South African public at large. Indeed, our clients are encouraged to see that Bell Pottinger recognises a broader accountability responsibility.
7. Our clients, acting in the public interest, intend making recommendations to the PRCA and CIPR. In that regard, they aim to assist the UK regulatory authorities to understand the social, economic and potential legal implications of Bell Pottinger's conduct. Given your own statement in the apology, that "[m]ost seriously, it was said that we had supported or aided campaigns to stir up racial division in South Africa", you will appreciate that South Africans, including our clients, are concerned to ensure that the context and impact of Bell Pottinger's conduct are properly contextualised and understood by Bell Pottinger's "senior management [who] have been misled'' and by the UK regulatory bodies that are themselves considering the conduct.
8. Such understanding is likely to be enhanced, in our respectful view, by input from respected South African-based non-governmental organisations and through South African lawyers on the potential South African legal and constitutional implications of Bell Pottinger's conduct.
9. You are no doubt aware of the volatile history of South Africa insofar as issues of race and sectarian politics are concerned. Because of our clients' experience in matters relating to the protection of South Africa's democracy and Constitution, it is imperative that South Africa and its special circumstances feature large in any consideration of the matter by the regulatory authorities in the UK and that our clients be given a meaningful and informed opportunity to make submissions in relation to the final report and Bell Pottinger's conduct. Our clients will only be in a position to make meaningful submissions if they are furnished with all the relevant information as a matter of urgency.
10. To that end, our clients request the following as a matter of urgency:
10.1 that the terms of reference for Herbert Smith Freehills LLP's appointment, as well as their mandate, be made available;
10.2 access to all underlying information and documentation on which any investigation and report are based, together with any interim reports that have already been prepared; and
10.3 access to any other information and documentation in Bell Pottinger's possession which relates to this matter.
11. Once the final report is available, our clients also request copies of that report.
12. Given the importance of the investigations currently being undertaken into the Oakbay account, and the fact that your apology suggests that the Herbert Smith Freehills investigation is expected to be "completed in the next few weeks", our clients ask that you treat this request urgently.
13. Our clients look forward to your favourable response by no later than 20 July 2017.
Issued by Helen Suzman Foundation, Section27 and Save South Africa, 18 July 2017