CAPE TOWN - South African major banks are a law unto themselves as they have powers to make decisions that affect people's lives on a whim and use tricks to escape being held accountable, including hiding behind “jurisdiction” when they are taken to court.
This is how Durban-based legal expert and political analyst Mpumelelo Zikalala interpreted the behaviour of the banks who are being legally challenged for terminating banking accounts of Sekunjalo Investment Holdings (SIH) and its associated companies.
Zikalala’s deduction stems from the banks’ repeated “jurisdiction” argument, which effectively suggests that there is no court in South Africa that has authority to hear the matter of them being able to “willy-nilly” close bank accounts.
The banks first raised the matter of jurisdiction at the Western Cape High Court, when Sekunjalo took on Nedbank on an urgent basis to prevent them from the imminent closure of accounts.
Judge Matthew Francis, who ruled in favour of the urgency, referred the matter to the Equality Court and the Competition Tribunal, being the institutions with exclusive jurisdiction, according to his interpretation, of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act, and the Competition Act.
On appearing before the Competition Tribunal last week, lawyers representing the various banks again maintained that the Tribunal did not have jurisdiction over the matter. The Tribunal has reserved its ruling.
At the Equality Court, Nedbank Limited and Nedgroup Private Wealth Stockbrokers also raised the same argument of the jurisdiction in the judge’s chambers, which resulted in the postponement of the matter.
Zikalala said clients are forced to open bank accounts at the discretion of the banks, and when they are rejected, they are left with no alternatives.
“If they feel that their reputation is affected by having an account with you, they can shut down the account simply, whether they have reasons or not, because they have power. You open the account at their mercy and as long as they still like to continue with you, you can continue.”
Zikalala believes that if the banks did not have anything to hide, the issue of jurisdiction would not have been brought up.
“The high court, in this case, was not supposed to say it cannot listen to the matter, because the high court had an inherent jurisdiction, meaning it is not unable to buy any piece of legislation. Anything that has to do with the matter of the Constitution that you send to the high court, the high court is obliged to hear it.
“Due to the inherent jurisdiction of the high court, it then has the power to hear all these matters. At the end of the day if you want to protect human rights there is no other forum, as the Constitution says that the high court is there for that reason,” said Zikalala.
Sekunjalo’s executive chairman, Dr Iqbal Survé, and 43 companies linked to the Sekunjalo Group, are also challenging the decisions to shut down accounts by First Rand Bank, Absa, Mercantile Bank, Sasfin Bank, Investec Bank, Bidvest Bank and Access Bank.
Zikalala said that the delaying tactics used by the banks might be because they cannot stand in court and justify their practices, which seem to be punishing the poor based on the colour of their skin while hiding behind their risk assessments.
He said this perpetuates inequality through banks’ actions, including charging more interest to poor people, meaning that the “rich will be richer and poor will be poorer. “They will try everything possible to hide the colluding practices they are applying,” he said.
Further, Zikalala says the banks are offering different services to different people although we are all human and free South Africans: “We did not wake up one day and decide that we want to be black and be marginalised and be without any legacy.
“Those that have been able to break through are still punished by the fact that the reasons they (banks) are using to approve or not approve, is unknown, and on that basis they might be discriminating, which should be dealt with by our courts,” he said. “Let us ask this question from the political perspective. Why does South Africa not have a bank to take on all these individuals who are denied access by the major banks?”
Zikalala slammed the banks for deciding to shut down Sekunjalo’s accounts.
“They are a law unto themselves, they decide what to do and when and who without oversight, and they have set up a closed (banking) industry so that no one else can enter without their approval,” said Zikalala.