The Sekunjalo Group which includes Independent Media and 30 other companies, yesterday asked the Competition Tribunal to consider a further extension to the current interim relief it granted the group, or there could be catastrophic consequences.
The extension is being opposed by Standard Bank, FirstRand, Access Bank, Mercantile Bank and Nedbank.
The interim order, granted on September 16 last year and extended in March, came after several banks closed transactional facilities for each of the companies within the Sekunjalo Group.
The interim relief ordered that the accounts be reopened with the same terms and conditions as before the closure, and prevented the banks from closing any Sekunjalo accounts for a period of six months, or until the investigation by the Competition Commission was concluded, or whichever came first.
Advocate Vuyani Ngalwana, SC, acting for Sekunjalo yesterday said the investigation had not yet been concluded and it stood to reason the interim relief would be extended to protect Sekunjalo and its group of companies.
“The tribunal has already confirmed that there is no ambiguity or obvious error in its interim order, when it extended it in 2023 without any demand from any of the banks. There is no dispute that the applicants cannot participate sustainably as contemplated in the Competition Act in various markets without a bank account.”
Ngalwana said FNB had already closed Sekunjalo’s bank accounts and only a further extension of the interim order could reverse that conduct. “If the interim order is not extended further, all the other banks, barring Standard Bank and Nedbank which are subject to court interdicts, will follow FNB’s example.”
He said another reason for the extension is that the commission was still investigating the merits of the complaint “because the banks have delayed providing further information sought by the commission”.
“If the interim order is not extended and the banks close the accounts, any referral to the tribunal will become an academic exercise because by the time the tribunal rules on the referral, the applicants will be out of business, having likely been unbanked and unable to transact, pay salaries and taxes.”
Ngalwana said if the interim order was extended further the banks would suffer no prejudice, and that the banks had been selectively applying the reputational risk excuse, saying that “FNB still banks EOH and its subsidiaries despite EOH being heavily implicated in corruption and bribery claims, which were laid bare at the state capture inquiry”.
“There is no dispute that the Sekunjalo Group is owned and operated by historically disadvantaged persons and benefits historically disadvantaged persons – a closure of their banks accounts resulting from the various markets in which they trade would have catastrophic consequences on these communities, and would contravene the purposes of Section 2 of the Competition Act.”
Ngalwana said the tribunal must also consider that none of the banks opposed the first extension application in February.
Senior counsel for the banks said the interim interdict had lapsed and there was nothing for the tribunal to extend, nor did it have the power to extend.
Advocate Matthew Chaskalson, SC, acting for Standard Bank, said the commission itself and not Standard Bank was responsible for the delays in the investigation.
The meeting was adjourned after submissions were heard yesterday.