Cape Town - The Sekunjalo Group of Companies’ (Sekunjalo) bank accounts at Nedbank will continue to remain open after the Western Cape High Court ruled against Nedbank’s appeal.
The bank had sought to appeal against the interim interdict which prevented it from closing down the accounts of the Sekunjalo Group of companies. The interim order was granted in June.
Nedbank had sought leave to appeal Judge Mokgoatji Dolamo’s judgment. It had argued that the matter was appealable, and as such had reasonable prospects for success.
They had argued that the section of the Equality Act, which governs appeals from the Equality Court, allowed for an appeal against any order of such court.
Dismissing the application for leave to appeal with costs, Judge Dolamo said: “The logical conclusion of this line of reasoning is that any order will include interim orders. I do not subscribe to this wide interpretation of this section.”
In a statement issued after the judgment, Sekunjalo said the “interests of justice” had been served.
“Dr Iqbal Survé, Sekunjalo Investment Holdings (Sekunjalo) and its Group companies, are delighted to note the positive outcome in their favour, of the leave to appeal a decision that saw Nedbank ordered to re-open and keep open, all Sekunjalo-related company banking accounts until such time as Sekunjalo’s main review was heard in the Equality Court.”
The matter before the Equality Court was an application instituted by Sekunjalo executive chairman Dr Iqbal Survé and 43 others representing the wider Sekunjalo Group, against Nedbank Limited and Nedbank Private Wealth Stockbrokers (Pty) Limited.
Regarding Nedbank’s argument that the fact that it would have to provide banking facilities to Sekunjalo pending the hearing of the main review application would pose reputational risk, Judge Dolamo said: “Without any proof of such risk, in my view, it does not amount to irreparable harm”.
Appearing for Nedbank in September, Alfred Cockrell SC told Judge Dolamo that the interim order should never have been granted in Sekunjalo’s favour as the Group had not established a prima facie case of unfair discrimination and that this alone, was grounds to allow an appeal.
Nedbank argued that Judge Dolamo’s June decision had forced Nedbank to continue banking Sekunjalo, even though it no longer had the appetite to do business with the Group.
Sekunjalo’s advocate Vuyani Ngalwana SC said the arguments put forth by Nedbank did not hold water and that while nothing substantial would change for the bank if it continued to bank Sekunjalo, everything would change for Sekunjalo if it were to lose its bank accounts.
“The harm to Sekunjalo is not imaginary, it is palpable and so it is not in the interests of justice to allow the appeal,” Ngalwana said.
In his ruling, Judge Dolamo said he had not been persuaded that the order was appealable nor that it would be in the interest of justice to grant leave to appeal it, pending the review application.
“The review application raises substantial constitutional issues of national interest, some of which have already reached the Portfolio Committee of the National Assembly and indications are that other parties may seek leave to join the proceedings.
“It is vital therefore that Sekunjalo remains alive to proceed with the review application. The closure of its accounts may have the reverse effect in a matter of such national importance which in my view, has reasonable prospects of success in the review application.”
This came as Sekunjalo Investment Holdings (Sekunjalo), its group companies and Survé scored a major victory against Mpati commissioners. Yesterday, the parties said they were pleased commissioners Gill Marcus and Emmanuel Lediga had withdrawn their notice to oppose the review.
On Tuesday, Marcus and Lediga officially submitted their notice of intention to withdraw opposition to the official review of the report they helped compile.
The black-owned conglomerate took the Mpati Commission Report into alleged impropriety at the Public Investment Corporation (PIC) to the High Court of South Africa for an urgent formal review of its contents and to have it set aside.
Survé said Sekunjalo’s detractors had used the report against the group and its subsidiaries even though the commission had never proved any misconduct by Sekunjalo.
“This is a significant victory for Sekunjalo and its Group companies. For Sekunjalo, this signifies that the review of the Mpati Commission report by retired Judge, Advocate Willem Heath has merit and is being taken seriously. As it should.
“This is something the State should also note, as in failing to provide the full record of the Mpati Commission Review to Sekunjalo’s legal team, the State is hampering the legal process and from justice being served,” read the statement.
In his review of the report, Heath remarked the Mpati Commission Report was a “grave injustice” to Sekunjalo.
“Yesterday’s developments reinforce Sekunjalo’s stance and Heath’s observations and concerns and confirm that the Group was correct in proceeding with their request for a formal and urgent official review of a document, that has needlessly caused the entire Group untold reputational damage,” Sekunjalo said.
Among others, the Heath review found:
- Sekunjalo Investment Holdings (SIH) was never part of the terms of reference of the Mpati Commission.
- The term malfeasance cannot be applied to Sekunjalo.
- The conduct, findings and recommendations of the Mpati Commission were irreparably tainted by illegality.
- The commission failed in complying with its terms of reference and its rules.