RECENT legal judgments have vindicated the Sekunjalo Group, confirming that the company has not engaged in any wrongdoing. Despite facing various inquiries and hearings, including the Mpati Commission, Western Cape High Court, Equality Court, and Competition Tribunal, none of these entities found any evidence of corrupt behavior by Sekunjalo.
However, the recent ruling by the Competition Appeal Court (CAC) is surprising, as it was based on procedural technicality. The CAC claims that the banks will suffer reputational risk by banking companies associated with the Sekunjalo Group, including Independent Media.
This decision overlooks the fact that without banking services, the Sekunjalo Group of companies would suffer irreparable harm, and Independent Media's reputation would also be damaged.
The fairness of the rule of law comes into question, especially when the Competition Appeal Court overturned a decision by the Competition Tribunal to keep the Sekunjalo Group's banking accounts open until the Equality Court makes a final determination on the matter of discrimination.
Let's take a closer look at the outcomes of the various judgments:
The Mpati Commission – The inquiry was into impropriety at the PIC, not into the companies it dealt with. The Mpati report did not declare that the Sekunjalo Group companies had done anything wrong. However, malicious gossip damaged the Group's reputation, leading to a formal court review prompted by an independent review conducted by retired judge Advocate Willem Heath. Heath found that the Commission exceeded its powers and acted beyond its scope, unjustly tarnishing the reputation of the Sekunjalo Group. The Group has since applied to the Western Cape High Court to formally take the Mpati Commission Report under review and to ultimately have it set aside.
The High Court – Western Cape: Judge Matthew Francis expressed disapproval of how Nedbank treated the Sekunjalo group companies and criticized Nedbank's deliberate frustration of the case before the Competition Tribunal. The judge remarked that banks should not mechanically apply the Bredenkamp judgment, and courts should avoid enforcing contract law at the expense of public policy.
The Equality Court – Western Cape: Judge Mondi Samela found that Sekunjalo had made a case and ordered Nedbank to keep the accounts open. Nedbank argued that Sekunjalo had accounts at Standard Bank, but Sekunjalo's advocate,Vuyani Ngalwana SC, reasoned that the Standard Bank accounts were not a remedy as they were also under review, hindering Sekunjalo from conducting business or opening new accounts.
The Competition Tribunal – Sekunjalo took the banks to the Tribunal ahead of a Competition Commission suit to highlight how the banks had acted in concert to close their accounts. The Tribunal found for Sekunjalo, stating that the banks did not have adequate justification for their actions. It ordered all accounts to be reopened and stay open until the Equality Court or the investigation reaches a final determination. The Tribunal criticized the banks' stated rationale for unwillingness to provide banking services due to reputational risk, noting that the banks lacked consistency in their application. Other companies with serious allegations of misconduct have not faced similar treatment. The banks failed to provide concrete evidence of consistency in their approach to reputational risk, weakening their case.
The Competition Appeal Court (CAC) – The CAC overturned the Tribunal's decision on procedural technicality without examining the merits of the case itself. The recent legal judgments have spoken loud and clear, exonerating Independent Media from any wrongdoing. Despite enduring a series of inquiries and hearings, not a shred of evidence of corrupt behaviour has been found against the company. However, the Competition Appeal Court (CAC) ruling, based on procedural technicality, has ignored the severe repercussions faced by the Sekunjalo Group of companies and Independent Media without banking services. In so doing, the CAC's judgement raises some serious questions and undermines the principles of justice and transparency. It is imperative therefore, that the rule of law be applied consistently and fairly, safeguarding businesses and media organizations from unwarranted harm.
The fight for transparency and accountability remains a steadfast endeavour, to shape a just financial system that truly serves the interests of all. The resolve to seek truth and uphold justice must remain unwavering, for only then can we build a society where the principles of integrity and equality reign supreme.
Sizwe Dlamini is the acting editor of the Sunday Independent.