Competition Tribunal grants Sekunjalo Group interim relief – orders bank accounts to be reopened

Johannesburg - The Competition Tribunal has granted the Sekunjalo Group interim relief, preventing three banks from closing their bank accounts and ordering five others to reopen bank accounts that have already been closed.

The interim relief will subsist for a period of six months pending the conclusion of an investigation by the Competition Commission into a complaint regarding restrictive practices filed by the Sekunjalo Group against the banks.

A total of 36 applicants, including Dr Iqbal Survé, the Sekunjalo Group’s chairperson brought the interim relief application against nine banks, claiming that the banks’ conduct, in terminating the banking relationship with them and/or refusing to provide banking and payment services to them, constituted an abuse of dominance and/or collusive conduct in contravention of the Competition Act.

The Sekunjalo Group had asked the Tribunal for an interim order prohibiting the closure of their existing banks accounts against nine banks, ie. Nedbank, ABSA, First Rand, SASFIN, Access Bank, Standard Bank, Mercantile, Bidvest and Investec Investec.

It also sought that the banks restore accounts that had already been closed.

The Tribunal ordered that Nedbank, ABSA, Standard Bank, Mercantile ans Bidvest reopen the bank accounts on the same terms and conditions as which existed before they had been closed.

The Tribunal also interdicted Standard Bank, Mercantile and Bidvest from closing the Sekunjalo’s bank accounts.

Responding to the Tribunal’s order, Sekunjalo Group chairman Dr Survé, said it had been a challenging period for the company, but remained positive that the outcome was a step in the right direction for the company.

He welcomed the Tribunal’s order.

“This has been a challenging period for all of us, but this outcome is undoubtedly a step in the right direction to restoring our reputation, as well as our ability to trade and deliver on our Group mandate.

“We are most grateful to the Tribunal for their fair, just and considered opinion of the facts at hand.

“I would also like to express my sincere gratitude to the leadership and employees of the various companies within the Sekunjalo Group for their belief in our cause and for the resilience that they have shown throughout this tireless process.

“This order by the Tribunal is also important for financial institutions and their systems that need to be supportive of transformation, which will help to open the economy and include more competition.

“It is time that the abuse of power of these oligopolies and their anti-competitive conduct be prevented and that they face their reckoning.

“Their continued anti-transformation actions and attitudes go against our fight for freedom and liberation,” said Dr Survé

The Tribunal made the following order for a period of six months or until the Competition Commission concludes its investigation which was filed by Sekunjalo last December:

• Nedbank is to reinstate/restore the bank accounts including all services that it provided to the Applicants that held accounts with it, save for the exclusions detailed in paragraph 360.1 and 360.2 on the same terms and conditions as existed prior to the closure/termination of the accounts.
• Standard Bank is interdicted from closing the bank accounts of the Applicants that hold accounts with it, and in any way unilaterally changing the terms and conditions that attach to the accounts and/or services provided.
• ABSA is to reinstate/restore the bank accounts including all services that it provided to the Applicants that held accounts with it, save for the exclusions detailed in paragraph 360.3 on the same terms and conditions as existed prior to the closure/termination of the accounts.
• First Rand is to reinstate/restore the bank accounts including all services that it provided to the Applicants that held accounts with it, on the same terms and conditions as existed prior to the closure/termination of the accounts.
• Mercantile Bank, a division of Capitec Bank Ltd is interdicted from closing the bank account of Health System Technologies (Pty) Ltd, the Fourteenth Applicant, and in any way unilaterally changing the terms and conditions that attach to the account and/or services provided.
• Sasfin is to reinstate/restore the bank accounts including all services that it provided to the Applicants that held accounts with it, save for the exclusions detailed in paragraph 360.4, on the same terms and conditions as existed prior to the closure/termination of the accounts.
• There is no order pertaining to Investec.
• Access Bank is to reinstate/restore the bank account including all services that it provided to Afrinat (Pty) Ltd, the Fourth Applicant, on the same terms and conditions as existed prior to the closure/termination of the account.
• Bidvest is interdicted from closing the bank account of Orleans Cosmetics (Pty) Ltd, the Seventh Applicant, and in any way unilaterally changing the terms and conditions that attach to the account and/or services provided.

There was no order on costs.

The Sekunjalo Group had argued that the banks’ conduct of closing accounts was an abuse of dominance, and they argued that without access to banking and payment services, they would cease to trade and effective competition within the various markets in which they operate would be eliminated.

The Tribunal also considered the potential competition and public interest consequences of not having access to banking and payment facilities: “The adverse consequences of not having access to banking and payment services would include the inability of a firm to attract investment and expand in the market(s) that it operates in and apply for credit/loans, as well as the adverse reactions of customers and suppliers when confronted with transacting with a firm without banking and payment facilities. Clearly such a situation would be untenable in a fast-paced modern economic environment.”.

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