Cape Town - Nedbank’s late filing of its papers and an 11th-hour technical objection in an important case involving Sekunjalo Group of Companies (Sekunjalo) led to a postponement of the case on Thursday.
The matter before the Equality Court in the Western Cape is an application instituted by Sekunjalo Investment Holdings (SIH), Executive Chairman Dr Iqbal Survé and 43 others representing the wider Sekunjalo Group against Nedbank Limited and Nedbank Private Wealth Stockbrokers (Pty) Limited.
The delay in the hearing of the matter is due to Nedbank only filing their objection on Wednesday night and presenting their papers to the judge on the morning of the hearing.
This, despite having been aware of Sekunjalo’s case since the case was referred to the Equality Court by Western Cape High Court Judge Matthew Francis on February 14.
Following consultations in chambers with advocates from both sides, Judge Mondi Samela, presiding over the matter in the Equality Court, postponed the matter.
Nedbank has made claims that it has suffered reputational damage by its association with Survé, Sekunjalo, and related entities.
On Thursday Sekunjalo’s attorney, Ashley Adriaans, said the lawyers for Nedbank raised “a technical point on the issue of jurisdiction” on Wednesday evening, and as such Sekunjalo’s lawyers had not had the opportunity to consider it and apply their minds accordingly.
Adriaans said Judge Samela raised the issue in chambers with the advocates and indicated that as this was a new point, Sekunjalo’s lawyers obviously needed time to consider it.
He said that during the consultations, the judge got the parties to agree on a new date when the whole matter, including the new points raised by Nedbank, could be heard as he was averse to hearing the matter piecemeal.
In his February 14 judgment, Judge Francis dismissed an earlier urgent application against the banks on jurisdictional grounds, referring to the need for the merits of the case to be heard at the Equality Court, although concurring that the applicant’s matter was indeed urgent.
At the time, he said his reading of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act and the Competition Act was that the Equality Court and the Competition Tribunal had exclusive jurisdiction to determine the matters referred to them by the applicants to the exclusion of the High Court.
On Monday and Tuesday this week the Competition Tribunal heard the Sekunjalo Group’s case against Nedbank and eight other banks. The group accused the banks of collectively refusing to provide banking and payment services to Sekunjalo and its associated companies, arguing that their (the banks’) behaviour constituted an abuse of dominance or collusive conduct in contravention of the Competition Act.
Some of the factors that Sekunjalo wanted the tribunal to consider, to make its prima facie case for interim relief, included the prohibitive practices and the modus operandi, in concert, by which the banks operated to close Sekunjalo’s accounts, which amounted to an abuse of their market dominance.
The tribunal heard how the country’s major banks might have discussed and agreed to shut down the bank accounts of the Sekunjalo Group of companies, acting collusively in instituting what has amounted to a group boycott.