THE DAVID GLEASON COLUMN
When is a loan a gift? Does it matter? Well, yes it does, especially when commerce and banks are involved. And I suspect the story I am about to relate may come to feature prominently as the evidence unravels before a special tribunal over the course of the year.
Once upon a time – in 1990 – the South African Rail Commuter Corporation, which operates the national urban rail service, deposited R300- million with a small bank called Cape Investment Bank (CIB) that was offering good rates.
Not much later – in April 1991 – CIB was put into liquidation by the Reserve Bank and the Commuter Corporation’s substantial deposit was frozen. The corporation would have to wait a long time before it would know how much it would get back.
As you would expect, this was a pretty unfortunate kettle of fish for a corporation which relies heavily on government subsidies to keep going. So, when its senior executives discovered that the Reserve Bank had removed its own deposit of R300-million from CIB only 10 days before the bank was put into liquidation, they were outraged. Put the money back, they demanded.
Oh no, we won’t, said the Reserve Bank. A major argument developed which was rapidly leading to the courts. But those in authority at the time didn’t want this dirty linen aired in public.
So, instead of a public airing, the argument went all the way to the Cabinet where, no surprises, finance minister Barend du Plessis and his transport colleague, Piet Welgemoed, amicably agreed that the matter would be referred to a secret arbitration, presided over by former Chief Justice Pierre Rabie.
And that was where, as it transpires, Reserve Bank governor Chris Stals said he knew CIB needed a capital injection (of R15,4- million), an action he also knew was outside the Reserve Bank’s legal capability. So Stals structured a simulated instrument – he dressed up a gift to look like a loan.
Within the same time span, the Reserve Bank took a similar position with regard to Bankorp, then a seriously ailing commercial bank controlled by Sanlam. But Bankorp needed not R15-million, but R1,5-billion.
The method was the same. The Reserve Bank made available a loan at a 1% a year interest rate; that loan was then immediately deposited with the Reserve Bank at 16% interest. The difference in the rates is the sum by which both CIB and Bankorp (later Absa) benefited. In Absa’s case, once the loan period expired, Stals “deemed” it repaid, so converting the proceeds into a gift.
There are two critical aspects to these manoeuvrings. The first is that of the role of “lender of last resort”, a feature to which Stals referred at length during his submission to the commission of inquiry into the Tollgate failure.
At the core of Stals’s evidence was his view that central banks have to provide assistance to an individual commercial bank if failure to do so might invite the danger of systemic risk leading to a collapse of the whole banking system.
But there are two flaws in his argument. First, nowhere in any economics textbook that I have ever read, and which deals with the lender of last resort role of central banks, is it ever suggested that intervention is to repair insolvency. To contain illiquidity for a short while, certainly. But if a bank is insolvent, it must be taken over by someone else and shareholders must suffer the consequences. On the contrary, in Bankorp’s case, shareholders ended up being seriously enriched.
Second, whatever loan is made by a central bank, it is done at the discount rate, not, as in the case of CIB and Bankorp/Absa, at rates so far from reality as to constitute a fantasy.
The second feature of the evidence led by Stals to the Rabie arbitration and later to the Tollgate inquiry is that it is directly contradictory. When he gave evidence to Rabie, Stals said he wanted to make a donation to CIB but could achieve it only by dressing it to look like a loan. Rabie agreed. (My legal friends tell me there is a terrible five-letter word beginning with “f” to describe this.)
In his submission to the Tollgate inquiry, however, Stals says his actions as lender of last resort were to advance normal loans to Bankorp/Absa, “the lifeboat”.
I have to assume from this that normal loans were meant to be repaid, and that the proceeds of these would not be converted into donations – a position rather far removed from his evidence to Rabie.
So which of these two pieces of evidence turns out to be correct may well become the fulcrum of these sordid affairs.