Cape Town - ABSA Bank’s submissions that it could not reopen accounts it had previously closed were rebutted on Tuesday by advocate Vuyani Ngalwana SC, acting for Sekunjalo Investment Holdings and 35 other applicants (the Sekunjalo Group).
Making his final submissions during the Competition Tribunal hearing on the matter between Sekunjalo and nine of the country’s biggest banks, Ngalwana quoted a Constitutional Court judgment from the 2001 case of the National Gambling Board versus the KZN premier.
The Constitutional Court had said that in an application for an interim interdict, the dispute was whether in applying the relevant legal requirements the status quo should be preserved or restored, pending the decision of the main suit.
“Absa says we cannot ask for the reopening of accounts already closed because that is not maintaining the status quo. However, the Constitutional Court judgment put paid to Absa’s argument that interim relief is not for reopening what has already been closed,” Ngalwana said.
In its submissions Absa Bank, represented by advocate Michelle le Roux, claimed it had acted unilaterally in closing Sekunjalo’s accounts in February last year and the fact that other banks followed suit shortly afterwards was a “coincidence and not collusion” and not the action of a cartel.
Le Roux was reacting to tribunal chairperson Mondo Mazwai’s suggestion of possible outcomes to the matter, and how Absa would react given various scenarios.
Le Roux said the tribunal’s ruling should not be a “one-size-fits-all” approach, and that each bank’s position needed to be individually assessed when it comes to allegations of prohibitive practices Sekunjalo have made.
Asked by tribunal panel member Andreas Wessels how her client would react to Sekunjalo’s argument that no firm could continue operations without access to banking facilities, Le Roux said Sekunjalo had not demonstrated to the tribunal how dire its position was.
On Monday, Ngalwana argued the banks’ actions against Sekunjalo had forced it to use the services of third party paying agents, which has increased the cost of doing business.
With reference to how the banks appeared to act in concert against Sekunjalo, he stressed the fact Absa was first to close the group’s accounts – almost immediately followed by the other banks – was proof they had co-ordinated their actions against Sekunjalo.
Sekunjalo has accused Nedbank, Standard Bank, First Rand Bank, Absa Bank, Mercantile Bank, Sasfin Bank, Investec Bank, Bidvest Bank, and Access Bank of collusive practices in terminating the banking relationship with them.
The banks are also accused of refusing to provide banking and payment services to Sekunjalo, which argues that this behaviour constitutes an abuse of dominance or collusive conduct, in contravention of the Competition Act.
Yesterday, Access Bank said it had relied on media reports from the Daily Maverick and the Mail and Guardian, among other sources, to make its decision to terminate the account of Afrinat Ltd – one of 36 applicants that has taken nine banks to the Competition Tribunal over collusive practices.
This admission by Access Bank’s lawyer, advocate Tsakane Marolen, was made on Tuesday when questioned by Mazwai.
Marolen said the relationship with Afrinat was terminated after only two months, but denied that Access Bank was part of any conspiracy against Sekunjalo.
Sasfin Bank’s lawyer, advocate Luke Kelly told the Tribunal that it was a small and currently loss-making bank, without the appetite for what it considered high-risk customers.
Kelly argued that Sasfin has 36 employees and 4 500 customers, and if the tribunal ordered it to restore Sekunjalo’s business, the costs of servicing the accounts would be expensive and force it to employ more staff.
mwangi.githahu@inl.co.za