Banks not above the law

Nedbank signage on a building off of Hendrik Potgieter Road, Florida View. Picture: Karen Sandison/Independent Newspapers

Nedbank signage on a building off of Hendrik Potgieter Road, Florida View. Picture: Karen Sandison/Independent Newspapers

Published Dec 20, 2023


Durban — Nedbank’s win at the Supreme Court of Appeal (SCA) that it can now shut down the bank accounts belonging to Sekunjalo group may not mean the end of the battle as the company still has many other legal avenues to fight to save its business operations.

This is according to lawyers and public activist Godrich Gardee, of the Gardee Godrich attorneys, in reaction to the SCA’s ruling, which found the Equality Court was wrong in interdicting Nedbank from shutting down bank accounts belonging to Dr Iqbal Survé’s businesses.

The SCA on Monday rejected the Equality Court’s findings that Sekunjalo had prima facie evidence that Nedbank’s decision to close the accounts was based on unfair racial discrimination.

Gardee said in order to temporarily set aside the SCA’s ruling, Sekunjalo should file a leave to appeal application at the Constitutional Court.

“Then the decision of the SCA would be deemed not to be in operation up until the Constitutional Court has made a determination on the appeal,” he said.

Gardee added that even if Dr Surve were to lose the appeal at the Constitutional Court, it would not be over as he would still be able to exercise other legal avenues to keep the fight on.

“On face value, it may look like (the matter would reach the final arbiter at the Constitutional Court, but it does not necessarily mean that because Sekunjalo may decide to approach the matter in a different court and on different merits and facts.

“The ruling of the SCA comes from Equality Court, and Competition Court and they do not necessarily come from the mainstream court where the constitutionality of the conduct of the banks was actually a subject,” he said.

While the matter had been taken to court on the constitutionality based on the bank’s discriminatory and unfair competition practices, “I think as time goes on it will come out on a different angle because it is an issue of the exercise of public power that is the subject to judicial scrutiny”.

Gardee said the SCA’s ruling was appealable as Nedbank had exercised vigilantism tactics to shut down Sekunjalo’s bank accounts without legally proven evidence of wrongdoing.

Banks should not be above the law when it comes to punishing its clients for any alleged offence, he said.

“There must be judicial scrutiny any time a powerful entity like a bank takes such a drastic position (terminating accounts) as banks are not different from any entity that exercises public power.

“And any institution that exercises public power is subject to judicial scrutiny,” he said.

In setting aside Equality Court’s interdict, SCA Acting Judge RM Keightley also slapped Sekunjalo with legal costs. Gardee warned that Dr Survé would suffer financially in the course of fighting for his right to do business without intimidation.

“It is the right of the litigants to pull it to the extreme but while one party is going out of money, the other party has a bottomless pit of money.”

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