South African banks are so desperate to hold onto the absolute power handed to them by the Supreme Court of Appeal (SCA) ruling of the Bredenkamp & Others vs Standard Bank, 2010, case, that they are pulling every trick in the book to avoid having to have a similar matter heard that may (or may not) deliver a different outcome that would prevent them from “willy-nilly” closing bank accounts.
The SCA did, however, in its ruling on Bredenkamp, hold that banks had too much power. And the most notable and current usage of this blanket fall-back and absolute power is in the termination of banking facilities for Dr Iqbal Survé’s Sekunjalo Investment Holdings (SIH) and other associated companies which have become collectively known as the Sekunjalo Group.
Godrich Gardee of Gardee Godrich Attorneys said this week that the banks were deliberately trying to avoid the matter being ventilated in a court of law by raising arguments based on jurisdiction at every court appearance.
Gardee, who is representing thousands of people who have allegedly suffered discrimination by the banks in a class-action suit, was commenting on the Equality Court matter between Sekunjalo and Nedbank, which was argued in Cape Town on Tuesday.
His comment was in reaction to Nedbank’s legal counsel, advocate Alfred Cockrell SC, who asked Judge Mokgoatji Dolama to dismiss Sekunjalo’s application for interim relief because the Equality Court did not have jurisdiction over the matter.
Dr Survé and Sekunjalo are seeking a court interdict preventing Nedbank from closing its accounts until the matter is properly ventilated in a court of law.
Cockrell had during the proceedings argued that the Equality Court only had jurisdiction over matters related to hate speech, harassment, and discrimination. He said Sekunjalo had not presented prima facie evidence when raising such issues in its opening affidavits and during its opening presentations made by advocate Vuyani Ngalwana SC.
However, Ngalwana rejected Cockrell’s appeal to the judge, saying where a complainant brings an application to the Equality Court, but also in the facts that he has pleaded, and seeks the kind of relief that would otherwise have been granted by the High Court, that in itself does not denude the Equality Court of jurisdiction.
“One judge can sit as the Equality Court judge to hear both matters and have them consolidated … the Equality Court proceedings are intended to be quick … This is intended to be a quick process, not a long drawn-out process,” he said.
The matter was first deferred by the Western Cape High Court after Nedbank had said it did not have jurisdiction. Again, when the matter was previously brought to the Competition Tribunal, the banks raised the same issue of jurisdiction. Gardee said: “They want to frustrate the litigant in this matter.”
He said, instead of asking the court to dismiss the matter, Nedbank should allow the judge to make the determination. He said Sekunjalo had properly argued its point of the unfairness of the Nedbank’s decision and now “they would wait for the court to make a determination”.
Gardee said the Competition Tribunal was a competent forum to hear the matter. “Banks are on the obstructive conduct trying to frustrate the litigant. They are deliberately obstructive and vexatious, believing that at the end of the day there should be no forum, tribunal or court that would hear the matter.”
He said Ngalwana dealt with the matter properly and adequately, and that his argument was persuasive, based on authority and provisions of the Constitution. “In circumstances where other companies and individuals are treated differently from the current complainant (Sekunjalo) by the banks, the Equality Court will make the determination as to whether this approach by the banks is discrimination, based on the prohibited conduct, which is race.”
According to Gardee, the High Court is inherently competent to hear any matter before it unless specifically precluded by a statute. In emphasising the jurisdiction of the Equality Court in the matter, Ngalwana referred Judge Dolama to several previous judgments, including those handed down by the Supreme Court of Appeal and the Constitutional Court.
Ngalwana’s argument was that the banks had decided to close Sekunjalo’s account/s based on unsubstantiated negative media reports, and the Mpati Commission report on the conduct of the Public Investment Corporation.
He said Justice Lex Mpati, in his report, had made remarks about Sekunjalo, which were not “findings”. He also raised the issue of discrimination based on the fact that predominately white-owned companies – Tongaat Hulett, EOH and Steinhoff International – had negative findings against them, but their accounts with various banks, including Nedbank, were never cancelled.
Judge Dolama reserved judgment, and both parties would be informed in due course about the judgment date.