Right of reply: Banking on the truth

One person’s truth is another’s lie.

It’s a curious thing, truth, and when a truth is revealed to have been not the truth at all, but a lie, there is a struggle to let go of the old to accept the new. This is a position that much of the indoctrinated South African public and business world are going to have to face now, on many fronts. 

Sekunjalo, our associated companies, and I, are not the ogres we have been made out to be as per Ed Herbst’s article “Iqbal Survé plays victim card again, this time at Competition Commission and equality court” in the Mail & Guardian on 5 March. Our reputations have, however, been sacrificed at the altar of expendable truth and lies, perpetuated by the agenda of narrative control and corporate hijacking that is business in South Africa today. 

It has now come to the point where I, my colleagues, and some 8 500 employees face the real prospect of our businesses, livelihoods and income being terminated. 

In a systematic group boycott, South Africa’s banks have or are in the process of closing our group transactional banking facilities, as well as those of some of our senior executives. Bank by bank. 

Reputational risk 

Based on so-called reputational risk, each of these institutions have claimed their reputations and international standing will suffer irreparable harm if they continue to trade with us. They have cited negative media reports – allied to the Mpati Commission of Inquiry Report – as their excuse for disassociating themselves and used contractual law as their reason to summarily terminate our ability to trade. 

The banking sector has too much power. They are a law unto themselves. They make calls on determining a company or an individual’s fate on rules, regulations and whims that seem highly bendable and fluid. They also, without doubt, make decisions based on racial profiling. Not much has altered since the dawn of democracy in 1994. 

Sekunjalo and its associates are not the first black-owned organisations or people of colour to be targeted by these institutions, but we want to make sure we are the last. 

For that reason, and to ensure that we can continue to trade and contribute to the South African economy (currently some R8-billion per annum), we have embarked on a series of legal cases, which include taking these banks to the Competition Commission to show collusion, and to the equality court, where we will prove discrimination. Further, we privately commissioned a review of the Mpati Commission report by retired Judge Willem Heath. 

Our course of action began with an urgent interdict against Nedbank in the high court in the Western Cape. This was to prevent Nedbank from terminating banking accounts, which were due for the guillotine on 15 February 2022. While Judge Matthew Francis ruled in favour of urgency of the case, he found he could not hear the merits as the equality court had the jurisdiction.

That said, Judge Francis also noted that he believed there is room for “transformative constitutionalism” in the banking sector. 

Consequently, we have applied for an urgent interdict in this court, which will be heard soon. 

Concurrently, we approached the Competition Tribunal, whose hearing started on 7 March, wherein we aimed to prove bank collusion. 

Motive 

Much has been made by the banks as to what they could possibly have to gain from silencing us. There are many reasons, chief among them the fact that the Public Investment Corporation (PIC) is both a shareholder in the banks and in Sekunjalo-related company competitors. 

The PIC is involved in litigation with some of the Sekunjalo-related companies, especially Ayo Technology Solutions. The banks benefit by assisting their shareholder, the PIC, in its bid to collapse Sekunjalo in the ongoing litigation and to force Sekunjalo’s hand in the ongoing mediation process between Ayo and the PIC. This is a punitive measure to advance the interest of their shareholder and ingratiate themselves with their shareholders in order to collapse Sekunjalo. 

The banks also benefit from the collapse of Sekunjalo, as these companies will be sold to new owners who either bank with them currently or will be admitted to bank with them so that in the long run they would have not lost this business, but they would have eliminated Sekunjalo as an entity. This has already played out with sudden offers to purchase certain of our entities for cut-rate prices. 

The Competition Tribunal 

The banks are part of the financial and economic establishment. Six banks control more than 90% of the market, and they have a common ownership through BankServ. They have a revolving door with the Prudential Authority. The executives and directors of the banks, as well as the compliance officers, also shuttle between banks. 

There is, therefore, more than a reasonable expectation that these banks converse with one another, and “compare notes” and embark on “collective action”. 

It is our contention that the banks are motivated to deny access to the payment systems for Sekunjalo. 

I say this because Sekunjalo is a self-funded black owned investment group, which has developed an independent pathway from the banks and the financial establishment. It is in many cases the first black company on scale to compete with companies in which banks have an interest, such as media, information and communication technology, e-commerce and the food and fishing industry. 

Through a series of common shareholdings in direct competitors to Sekunjalo companies, including the fact that through Independent Media we exposed how connected these banks are to the political order of the day, the CR17 campaign for example, these banks are highly motivated to shut us out. 

We did not expect the Tribunal to hear the merits of our case. The Tribunal was for an urgent interdict for interim relief, to prevent the closure of accounts but also to demonstrate the connectedness of the banks in their approach to the termination of our banking facilities. Yet, this did not stop the banks – all of them – from ignoring the purpose of why we were there. 

On that score, several misrepresentations were made by the banks’ legal counsel. Certain banks claimed we had not provided them with all the information to their questions, when in fact, we had given representation of more than 100 pages to at least two of the banks represented at the Tribunal hearing. 

Each of the banks in conducting their review of our various businesses interrogated transactions going back as far as ten years in their attempts to find fault. This amounted to several thousand transactions, all of which we patiently responded to. Critically, the banks have confirmed there has been no illegality in any of these dealings. 

The equality court 

This is an excerpt from the Heath Report, which speaks to the heart of the complaint we brought before the Competition Commission and Tribunal, and which we will present at the equality court. 

“Sekunjalo and termination of its banking accounts 

33.1. As the report was being prepared a number of SA banks terminated the Sekunjalo group bank accounts whilst some others have put the accounts on review. 

33.2. Having examined the court papers in relation to these actions it appears that all of these reasons were due to the negative media arising out of the [Mpati Commission]. 

33.3. The report has caused significant damage to the reputation and goodwill of Sekunjalo and is threatening its very existence. 

33.4. It also imperils the livelihoods of thousands of employees and sets back an important transformation project. 

33.5. All of this is regrettable due to the [Mpati Commission] not following due process and natural justice. 

33.6. The report has been a grave injustice to Sekunjalo.” 

While we submitted a complaint to the Competition Commission to demonstrate what we believe is a concerted effort and collusion to terminate our banking abilities, and by extension, our businesses, the real issue at play is the outright discrimination displayed by South Africa’s banks and their perverse ignoring of South Africa’s Constitution. 

This blatant discrimination has not only affected Sekunjalo and its companies, but other businesses and individuals. It is an untenable situation. 

In the banks’ determination to rid themselves of anything to do with us, they have violated several rights, including our right to free trade, freedom of association and dignity, among others.

Central to the banks’ case at the equality court will be their reliance on the judgment delivered in the supreme court of appeal (Bredenkamp and others vs Standard Bank in 2010) and their rights to unilaterally cancel contracts. 

The critical and most overlooked fact is that Bredenkamp and his colleagues had already been flagged by the US treasury’s office of foreign assets control as specially designated foreign nationals. There were thus grounds to reasonably suspect that Bredenkamp was involved in illicit dealings. 

However, try as they might to prove otherwise, the banks can find no evidence of any illicit dealings by any of the Sekunjalo-related companies. There is none. 

Judge Francis, in the high court in Western Cape, was particularly scathing of Nedbank’s conduct in invoking Bredenkamp, remarking that Bredenkamp cannot be arbitrarily or rationally attributed. 

Because of a “we can do whatever we like” attitude of the banks, many in South Africa have been discriminated against. Gardee Godrich Attorneys, representing more than 6 000 people, have applied to the equality court to be certified as a class action suit. 

This goes way beyond Sekunjalo. It is about equity and equality for all. It will be a defining moment in our democracy, history, and our future. 

The Heath report 

At the urging of parliament’s standing committee on finance, Sekunjalo Investment Holdings (SIH) and I instituted a private review of the Mapti Commission report, on which the banks, corporate South Africa, private individuals, and Independent Media’s opposition have hung us all out to dry. 

The findings, which were shared with me on Monday, prove that what we have been saying to maintain our innocence is true. 

Some of retired Judge Willem Heath’s “disparaging findings and criticisms” in his extensive review report of the Mapti findings include the following: 

• The commission’s disregard of and failure to comply with fundamental legal doctrines and principles and procedural fairness; 
• The commission essentially re-drafted its terms of reference; 
• The commission made a fundamental error in conflating several separate companies under the term “Sekunjalo Group”, an entity that does not exist in law and in fact, Sekunjalo Investment Holdings (SIH) was never part of the terms of reference of the Mpati Commission and neither was the Sekunjalo Group; 
• The commission’s report is lacking in supporting documentary proof and specifics; 
• The commission failed and/or refused to investigate substantial irregular transactions entered by the PIC;
• The Public Servants’ Association was fully entitled to be apprehensive about evidence leader Gill Marcus’ independence; 
• The media’s tactics were questionable to undermine the rule of law by offering journalistic opinion as fact, supporting some and vilifying other witnesses and companies. 

The Mpati Commission laid the foundation for the succession of bank account closures that followed. Reputational risk and the term “malfeasance” have become interchangeable with Sekunjalo, yet, again, nothing could be further from the truth. 

Judge Heath could find no evidence of wrongdoing on the part of Sekunjalo “in relation to either the Ayo or any other transaction with the PIC.” 

He goes on to say: “The term malfeasance may be applied to a public entity such as the PIC and therefore it could have been the commission’s intention to demonstrate governance issues at the PIC. The term malfeasance cannot be applied to Sekunjalo as it is a private company. In any event, with no evidence on the part of Sekunjalo and therefore it is incorrect to have tarnished the reputation of the company by inserting this term next to their name.” 

Heath has concluded there is no evidence of any wrongdoing by Sekunjalo (which includes Ayo and all its companies). “My investigation revealed that a great injustice has been done to SIH, Dr Survé and his companies and that transformation, job creation and employment of thousands has been put at risk by what appears to be a coordinated campaign to undermine and destroy Sekunjalo, Dr Survé and Independent Media. This is a blight on the South African landscape that a group that has operated with integrity for more than two decades, that has invested in the country and created jobs and has been committed to transformation, has been undermined, destabilised and effectively rendered unbankable by the negative media. It is a great travesty of justice to a group that should be recognised for its contribution to South Africa’s journey of transformation.” 

Ultimately, Judge Heath is of the view that the content of the Mpati Commission’s report is reviewable and stands to be set aside on the basis of illegality. 

This, then, would make each bank’s action null and void. This they will find hard to swallow. 

It was in 1834 that the then-president of the US, Andrew Jackson, said: “If the people only understood the rank injustice of our money and banking system, there would be a revolution by the morning.” 

Not much has changed – neither the injustice of “our” banking system, nor in the truth and lies people are fed, nor in the fact that it is time for equity and equality to be the basis on which economic prosperity is won. That is a truth worth fighting for.