Cape Town - The Competition Appeal Court on Friday reserved judgment in the appeal brought by three banks to dispute the decision of the Competition Tribunal (the Tribunal) preventing them from closing the Sekunjalo Group’s (Sekunjalo) bank accounts.
The court’s Judge President Norman Manoim and his fellow judges, Dunstan Mlambo and Brian Spilg, heard the appeals from Mercantile Bank, Access Bank and Standard Bank, and the replies from Sekunjalo, over a day and a half.
The banks had challenged, among other things, the Tribunal’s view that there was sufficient prima facie evidence to warrant its decision to grant interim protection to Sekunjalo.
This protection was granted based on Sekunjalo’s case and argument, which cited that the banks had been acting in concert and engaging in anti-competitive behaviour when they decided to close the group’s various banking accounts.
Several banks had closed or indicated they would close, the accounts of entities in the Sekunjalo stable, citing fears of reputational damage, which they based on the negative media articles stemming from the Mpati Commission of Inquiry’s report on impropriety at the Public Investment Corporation (PIC).
In his closing arguments on Friday, Senior Counsel Steven Budlender, who appeared for Standard Bank, argued that Sekunjalo’s case was not a competition matter.
Admitting that there was already a pending Equality Court proceeding brought by Sekunjalo against his client, Standard Bank, he argued: “Many of the points raised, would be more plausibly raised in the Equality Court or the high court, as indeed they have been.”
At the Equality Court, Sekunjalo has argued that Standard Bank and several other major South African banks have been selective in their termination of the bank accounts of members of the Sekunjalo Group when compared to any action the banks have taken against companies that are “white dominant businesses”.
In a final plea to the Competition Appeal Court (CAC), Budlender said Standard Bank’s “fallback position” was that the court should change the Competition Tribunal’s order with regards to closing the group’s accounts.
“At the very least, the order should be amended to say: ‘You are precluded from closing the accounts, save as required by law’.”
For Mercantile Bank, advocate Greta Engelbrecht SC asked for the CAC to uphold the appeal or, alternatively, review the Tribunal’s decision with costs.
In his wrap-up, Access Bank’s senior counsel, Arnold Subel, argued that the banks had not acted in concert and that his client had acted transparently all along.
In his closing arguments for Sekunjalo, senior counsel Ngwako Maenetje denied the allegations by the three banks that the Tribunal’s findings were inconsistent or based on circular reasoning.
Maenetje argued that the Tribunal had found the banks had in fact acted in concert and that there had been reliance on the actions of other banks, which they (the Competition Tribunal) had used as the basis of granting Sekunjalo relief against the banks.
He argued that despite the banks’ claims that they had acted independently, they had in fact acted in concert because their decision to place the Sekunjalo Group’s bank accounts under review and their refusal to onboard other parts of the group followed similar action by Absa and First Rand’s FNB.
mwangi.githahu@inl.co.za