Last throw of the dice for Sekunjalo in bid to keep accounts open

Sekunjalo Investment Holdings, the investment vehicle founded by business person Iqbal Survé, will approach the country’s apex court to overturn the decision by the Supreme Court of Appeal (SCA) which found Nedbank was within its rights to terminate its accounts.

The SCA on Monday set aside an interdict granted against Nedbank by the equality court in 2022 that it cannot close accounts held by companies in the Sekunjalo stable.

Survé and Sekunjalo had argued before the equality court that the bank’s decision to close the accounts amounted to unfair discrimination on racial grounds.

The applicants in the case are Survé and 43 others representing the Sekunjalo Group, while the respondents are Nedbank and Nedbank Private Wealth.

The SCA in a unanimous decision ruled that Nedbank was within its rights to give notice to shut the accounts and said the allegations of racism were not established based on the evidence before it.

Sekunjalo in a statement said it will persist with the racism allegations in its appeal to the Constitutional Court (ConCourt) and also questioned why the SCA matter was presided over by a panel of “five white judges”.

“Sekunjalo is hopeful the ConCourt will consider the apparent discrimination against it, especially against the backdrop of Nedbank’s own admission in writing that the group had not committed anything wrong,” Sekunjalo said in a statement.

“We once again make the point that banks are targeting Sekunjalo to eradicate black businesses from taking their rightful place in the economy, to maintain the status quo where white-owned and managed companies continue to dominate the capital markets and economy of this country.”

The basis of Sekunjalo’s racism allegations was that it was treated differently because it was black-owned, while entities such as Steinhoff, EOH and Tongaat Hulett were treated with kid gloves even after allegations of fraud against the companies were proved true.

The SCA judges said there was no evidence before them that Nedbank behaved in a racist manner.

“Effectively, the respondents’ case rested on no more than an assumption of racial designation. That assumption was insufficient to establish even a prima facie case that Nedbank had treated the respondents, as black customers, differently from white customers,” reads the SCA judgment.

“The equality court compounded the problem by itself expressly assuming, without deciding, that Steinhoff, EOH and Tongaat were white companies. Having done so, it went on to decide the case on precisely this basis.

“It misdirected itself in this regard by making this assumption in the absence of any evidence to support it, and then proceeding to the next leg of the inquiry without being satisfied that the respondents had discharged their onus on this, the foundational element of their case. This, in itself, is decisive of the matter. The necessary foundational element of racial identity had not been established.”

The Constitutional Court case will be a high-stakes matter for Sekunjalo and Survé because defeat there will mean Nedbank will shut down its accounts, making it near impossible for the group to transact and do business.

khumalok@businesslive.co.za