Cape Town - Following Friday’s resounding victory against Nedbank in the Equality Court – where the Sekunjalo Group of Companies (Sekunjalo) was granted an urgent interdict against Nedbank from closing its companies’ bank accounts – all eyes are now on the main case at the court where the battle against the banks is set to resume.
The applicants in the main Equality Court case are Dr Iqbal Survé and 43 others representing the wider Sekunjalo Group, while the respondents are Nedbank Limited and Nedbank Private Wealth (PTY) Limited.
Judge Mokgoatji Dolamo ruled that pending the final determination of Sekunjalo’s main Equality Court application any of its accounts that had already been closed at the time of the hearing of the application should be reopened with immediate effect.
The judge also ordered that Nedbank retain the terms and conditions on which these accounts were operating prior to the date of their closure, pending the final outcome of the main Equality Court application.
In addition, Judge Dolamo has also granted Sekunjalo the right to approach the Equality Court on the same papers duly supplemented.
Judge Dolamo ruled that Section 9 of the South African Constitution provides that everyone is equal before the law and has the right to equal protection and benefits of the law. This, in essence, mandates against unfair discrimination.
In his considered judgment, Judge Dolamo found that Sekunjalo has a prima facie case of discrimination, and that it has been treated differently to the likes of the Steinhoff Group, Tongaat Hulett, EOH Limited etc by Nedbank.
He also found that Sekunjalo and its entities would suffer irreparable harm if their accounts were to be closed, something Nedbank sought to diminish in its technical representations to the court.
A jubilant Dr Iqbal Survé said: “This is a resounding victory for not only Sekunjalo and its group of companies, but for all South Africans who have faced any form of discrimination by the banking fraternity.”
Dr Survé said the judgment was one step closer to the realisation of an equal society for all in South Africa at last.
He said the case was about fighting the prejudices of the past that still make themselves felt in the present.
Attorney Godrich Gardee said: "It confirms our grounds of application to be intervenors, an application granted last week on Tuesday. We look forward to developing the common law contract of banking relationship between clients and banks."
Much like other banks before it, Nedbank argued “reputational risk” in its pleadings to have Sekunjalo’s bank accounts closed, but as noted by Judge Dolamo, Regulation 39(4) is intended to protect the banks and the judge held that Nedbank would indeed be protected by this, even by continuing to bank Sekunjalo and its companies.
Judge Dolamo said that as a result, the balance of convenience is in favour of restoring and retaining the status quo. Judge Dolamo also found that Nedbank’s argument that the Sekunjalo Group could find other remedies did not hold water.
Judge Dolamo found that Sekunjalo had made out a proper case for interim relief, and therefore granted an interim interdict in terms of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda).
Judge Dolamo said he was satisfied that Sekunjalo had established a prima facie case that it had been unfairly discriminated against.
The matter, which was originally heard in the high court in April, ended up in the Equality Court after Western Cape High Court Judge Matthew Francis dismissed an earlier application against the banks on jurisdictional grounds, referring to the need for the merits of the case to be heard in the Equality Court and by the Competition Commission.
In another recent victory in the Equality Court matter, former Fedusa general secretary Dennis George’s application to intervene as complainants in a class action in the proceedings instituted by Sekunjalo and others in their interdict against Nedbank at the Equality Court, was accepted.
Represented by Johannesburg law firm Gardee Godrich Attorneys, the application intervention by George and five others was heard on an unopposed basis before Justice Katherine Savage in the Western Cape High Court.
Judge Savage granted leave for George and the others to intervene as the 52nd to 57th complainants in the main application.
Gardee said the six clients had all been subjected to the arbitrary termination of their bank accounts, due to purported risk.