The Sekunjalo Group of Companies (Sekunjalo) has won an interim order in the Equality Court preventing Nedbank from closing its bank accounts.
Western Cape High Court Judge Mokgoatji Dolamo ruled that pending the final determination of Sekunjalo’s main Equality Court application any of its accounts that had already been closed at the time of the hearing of the application should be reopened with immediate effect.
Dolamo also ordered that Nedbank retain the terms and conditions on which these accounts were operating prior to the date of their closure pending the final outcome of the main Equality Court application.
Nedbank were also ordered to pay costs.
A jubilant Dr Iqbal Survé said: “This is a resounding victory for not only Sekunjalo and its Group of Companies, but for all South Africans who have faced any form of discrimination by the banking fraternity,
“I would like to thank my colleagues, and the teams who have worked tirelessly on preparing for this case and fighting the prejudices of the past that still make themselves felt in the present, for all their effort and their support.
“This is one step closer to realising an equal society for all in South Africa at last.”
The judge found that Nedbank had discriminated against Sekunjalo.
In his judgment, he wrote: “There are two types of prohibited grounds of discrimination: specified and unspecified.
“They are defined as follows (a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or (b) any other ground where discrimination based on that other ground causes or perpetuates systemic disadvantage; undermines human dignity; or adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner”
Judge Dolamo said he was satisfied that Sekunjalo had established a prima facie case that it has been unfairly discriminated against.
“In my view, Nedbank has not proved its conduct was not based on the one or more of the prohibited grounds”
The applicants in the main Equality Court case are Dr Iqbal Survé and 43 others representing the wider Sekunjalo Group while the respondents are Nedbank Limited and Nedbank Private Wealth (PTY) Limited.
In its application, Sekunjalo argued that Nedbank, and the other major banks, terminated the bank accounts of members of the Sekunjalo Group, and had been selective in the action taken against companies that are “white dominant businesses”.
Sekunjalo said that companies such as the Steinhoff Group, EOH Limited, and the Tongaat-Hulett Group have all been found guilty of fraud and various other offences without their banking accounts or facilities having been terminated, yet black-owned Sekunjalo, whose actions were far less egregious, was the only one that faced punitive action
Sekunjalo’s lawyers argued that the yardstick used by Nedbank in assessing the reputational risk that is posed to it by the Sekunjalo Group, differs markedly from the one it uses in respect of the white companies.
They said Nedbank’s reliance on inaccurate and false media reports as the basis for terminating and denying Sekunjalo banking facilities, constitutes harassment and unfair discrimination, in contravention of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 (Pepuda) and is unconstitutional.
Sekunjalo argued that Nedbank had neither sought to prove nor disprove the media allegations against Sekunjalo, nor had it made any reference to corruption or money laundering by the Sekunjalo Group.
Sekunjalo further argued that the Mpati Commission was set up to investigate the PIC and not the Sekunjalo group and that the Mpati Report was published publicly in March 2020, having been submitted to the President in December 2019.
They said Nedbank relied on the contents of the Mpati Report to terminate the banking facilities of some of the entities in the Sekunjalo Group and that there was a difference in the way they were treated and that Nedbank did not even bother to deny this different treatment.
Judge Dolamo wrote in his judgement: “Nedbank admitted to a differential treatment between Sekunjalo Group and the retained companies albeit for non-discriminatory reasons.
“In Nedbank's view the retained companies no longer posed a reputational risk since their transformation. This, however, does not explain why these companies were not treated the same as the Sekunjalo Group even before their transformation this, notwithstanding the fact that they were subjected to the same, if not more, public scrutiny which carried with it reputational risk.”
The matter, which was heard in April, ended up in the Equality Court after Western Cape High Court judge Matthew Francis dismissed an earlier application against the banks on jurisdictional grounds, referring to the need for the merits of the case to be heard at the Equality Court and the Competition Commission.
In his ruling, Judge Francis said transformative justice had an important role in South Africa’s banking sector. Citing several constitutional court judgements and was scathing about Nedbank, calling it unfair.
This is a developing story.