In what has been hailed a victory for media freedom and the livelihoods of thousands of employees in the black-owned Sekunjalo-related companies, the Equality Court sitting in the Western Cape High Court has interdicted Standard Bank from shutting the accounts of the businesses, including Independent Media.
“Standard Bank is interdicted until Wednesday 11 September, 2024, or final determination of the applications pending in the High Court ... and in the Equality Court ... whichever occurs first, from closing the applicants’ banking accounts held with it for the reasons stated in its termination notices dated 25 April 2022, 7 July 2022 and 26 July 2022.
“In order to ensure the timeous exchange of papers and sufficient time for allocation to a judge for hearing, the applicants and Standard Bank are granted leave to approach this court on the same papers, duly supplemented, after Monday 1, July 2024, and by no later than Wednesday 24 July, 2024, to extend the order referred to in paragraph three above, alternatively for its discharge, on good cause shown,” said Judge Judith Cloete.
She said that in the High Court interdict application, the Sekunjalo Group asserted that its prima facie right – even if open to some doubt – lay in Section 22 and Section 34 of the Constitution.
“If Standard Bank is permitted to close the accounts at this stage, the purpose of the main relief sought will be defeated, because it is the very continuation of those banking facilities which is at the heart of the main dispute.
“Put differently, the Sekunjalo Group submits that refusing the interdict would be tantamount to ignoring those rights and permitting Standard Bank to resort to self-help.
“In the Equality Court interdict application, (Sekunjalo) relies on section 13(1) of the Equality Act, which only requires a complainant to make out a case for discrimination on a prima facie basis,” Judge Cloete said.
Her judgment on Thursday came after the Sekunjalo Group hauled Standard Bank to the Equality Court for an interim interdict against the bank.
This was in a bid to save the livelihoods of its employees after Standard Bank served it with a notice to terminate its accounts, initially citing “reputational risk” before raising concerns regarding compliance with the Financial Intelligence Centre Act (Fica) in court.
“If Standard Bank was so concerned about the grave violations it now asserts, one has to wonder why, in its attorney's letter of 14 November 2022, it offered to keep the accounts open while the (Competition) Tribunal's order ran its course. It also did not seek suspension of that order.
“In any event, Standard Bank has failed to comply with its own undertaking regarding reasonable notice periods in its termination notice, to which I have earlier referred. It seems to me that it has ‘taken the gap’ of the expiry of the Tribunal order and now seeks to capitalise on it."
She also noted that Standard Bank maintained that not only did Sekunjalo not enjoy the rights it asserts, but it could not be forced to keep the accounts open since this would run contrary to its regulatory obligations, in particular Section 21C and Section 21 E of Fica.
“Furthermore, Sekunjalo’s allegations of racial discrimination, says Standard Bank, have no basis in fact.
In turn, the Sekunjalo Group set out at some length in the High Court interdict application why it says that: (a) Standard Bank did not rely on alleged contraventions of Fica, but rather primarily on so-called reputational risk in its termination notice of 25 April 2022; (b) Standard Bank’s allegations of Fica contraventions are baseless; and (c) its averments of racial discrimination are well founded,” Judge Cloete said.
Reacting to the court’s decision, Independent Media and Sekunjalo Group Chairman Dr Iqbal Survé said: “Today’s judgment is a testament to hard work, and the rights of justice and the rule of law in this country.
“It is a win for every person, company, or organisation who has had their bank accounts unilaterally terminated and a warning to the banks that they cannot be a law unto themselves. The days of the banks determining the fate of people who have a right to bank, are close to reckoning.”
Approached for comment, Standard Bank said that while it was reviewing the judgment, it noted that the findings did not relate to the merits of the decision to terminate the banking relationship with the Sekunjalo Group.
“The judgment suspends the execution of the decision until 11 September, 2024, or the final determination of the applications currently pending in the High Court and in the Equality Court. The order also does not apply to Standard Bank’s statutory reporting obligations contained in Section 29 of the Financial Intelligence Centre Act.”
Public Service and Commercial Union (PSCU) deputy president Astrid Al-Anani said: “This victory is a victory for democracy and rule of law, it’s a victory against impunity and bullying by the vanguards of apartheid legacy. We will rally our communities and trade union movements to join hands and confront the impunity of these banks that have aided the suffering of many workers who lost their assets due to discriminatory practices applied racially for many years.”