The black-owned Sekunjalo group will now turn to the country’s apex court in its bid to challenge a Supreme Court of Appeal (SCA) ruling which effectively gives Nedbank permission to shut its banking accounts, a move that could be disastrous for thousands of Sekunjalo-related companies’ employees.
The SCA handed down judgment on Monday in a case where Nedbank had challenged an Equality Court interim interdict preventing it from closing any of the company’s bank accounts, and reopening those already closed, until the conclusion of the main Equality Court case in Sekunjalo’s claims of discrimination against it.
The Equality Court had found that Nedbank had discriminated against Sekunjalo with Judge Mokgoatji Dolamo saying he was satisfied that Sekunjalo had established a prima facie case that it has been unfairly discriminated against.
However, the SCA judgment written by Acting Judge RM Keightley stated: “It was inherent in Nedbank’s defence that the respondents (Sekunjalo) and the other entities were not similarly situated.
“There were material differences between them, bearing no relation to race, that informed Nedbank’s decision to terminate its relationship with the respondents and not with the other entities. The respondents did not substantially dispute Nedbank’s explanation.
“Their case essentially remained one based on their expressed perception that Nedbank’s conduct was racially motivated.
“This is insufficient to sustain a prima facie averment of unfair racial discrimination.
“Consequently, the Equality Court could not properly have found that the respondents had discharged their onus of establishing a prima facie case of unfair racial discrimination. It ought to have dismissed the application for this reason.”
She said the application being for an interim interdict, the Equality Court misdirected itself. “It was the respondents (Sekunjalo) that bore the onus of establishing a prima facie case of discrimination before Nedbank attracted an onus.
“They could not do so based on mere perception of unfair racial discrimination and an inferential case unsupported by facts. For the reasons already stated, it failed to clear that bar.”
Reacting to the judgment, Sekunjalo said it was “utterly shocked” by the so-called reasoning behind the SCA granting Nedbank the right to effectively terminate any banking facility of any company associated with the Sekunjalo Group.
The company said the judgment contained some obtuse observations, one, for example, claiming that Sekunjalo had not conclusively proven that EOH, Tongaat Hulett and Steinhoff whom it cited as being treated differently, were in fact white-owned.
The judges did not apply their minds to this point at all, contended Sekunjalo.
“In what is a landmark case to prove discrimination in how South Africa’s banks treat customers differently according to their racial classification, this sensitive case was judged by a panel of five white judges at the SCA.
“Not to impugn the integrity of these judges, but it is highly unusual, and especially so given that every other case at the SCA on the day that this matter was heard, had been presided over by a bench fully representative of South Africa. Why not this matter?
“What constitutes a ‘white’ company? At the time of Sekunjalo launching its original application, all these companies were listed on the Johannesburg Stock Exchange (JSE); were predominantly managed by white people and whose shareholders were also mainly white. Thus, in terms of the B-BBEE Act, they are determined to be ‘white’. These facts were common knowledge and were overlooked by the SCA.
“Also, common knowledge is that each of these companies were found guilty of criminal acts, not least of all fraud.
“Nedbank claims that these three companies had undertaken remedial action and were thus allowed to keep their accounts open.
Although Nedbank sent Sekunjalo a list of concerns, none of them demanded specific remedial action other than requesting Sekunjalo appoint an independent firm to review the Mpati Commission report – the genesis of Sekunjalo’s current challenges – which Sekunjalo did. Sekunjalo appointed advocate Willem Heath, a former judge, to conduct said review.
“Sekunjalo also responded to Nedbank with comprehensive information of more than 100 pages of documents, and attended two separate meetings.
“Despite this, Nedbank claimed to the SCA they had not been provided with a proper response by Sekunjalo. There was no comeback from Nedbank to the Sekunjalo question of what a proper response looked like either. All of this, the SCA overlooked,” said the company.