In Chinua Achebe’s seminal work No Longer at Ease, the tragedy is not born of cartoonish wickedness but of slow accommodation ― one small compromise at a time ― until a man who intended to be honest discovers that the system has already taught him how not to be.
South Africa’s relentless battle with illicit financial flows reads like this novel rendered in ledgers: an accumulation of “ordinary” corporate decisions ― documentation waived through, anomalies rationalised, red flags filed too late ― until clinics run short of essential medicines, and the social wage is trimmed to fit a national revenue hole that should never have existed.
On this moral canvas, Sars v Sasfin is not merely a technical tax dispute. It is a constitutional and economic stress test of whether our financial gatekeepers carry a public trust, and whether the price of looking away will finally outweigh the fee for looking through.
The central allegation against Sasfin is severe. The niche lender stands accused of aiding 19 “delinquent taxpayers” in unlawfully transferring more than R8bn out of the country, causing the state’s R4.8bn tax loss.
Sars’ claim is thus morally intuitive and legally novel. It says when the original taxpayers are gone, and the money has slipped beyond the horizon, the state should be able to recover quantified loss from the institution that processed the flows while alarms were allegedly sounding, and whose employees are accused of “wilfully” deleting transactions on bank records and processing payments based on falsified documents to conceal the unlawful conduct.
The tax collector is asking the Pretoria high court to either recognise an existing common law duty or, failing that, to actively develop a common law duty of care owed by banks to society, a development compelled by the constitutional mandate to promote the Bill of Rights by protecting state resources.
Counsel for Sasfin, Adv Wim Trengove SC, answers with a caution that cannot be waived away. He warns: recognise such a duty carelessly and you risk “indeterminate and potentially limitless liability” cascading through thousands of clients and billions of rands ― a precedent so blunt “it may cause banks to collapse”, with dire knock-on effects for the entire financial system and national economy.
The wrongfulness inquiry in our delict law was designed precisely to guard against such floodgates, acknowledging that banks operate on confidence, not unlimited balance sheets. That warning is the hard legal weather we must navigate, not scaremongering. But it is also not, and cannot be, the terminus of our thinking.
The temptation at moments like this is a false binary: immunise the gatekeepers to protect systemic stability, or punish them so harshly that the system learns fear.
Our law already sketches a more principled middle path. The existing framework ― including the Financial Intelligence Centre Act (Fica), for which Sasfin has already faced an administrative R200m penalty from the Reserve Bank’s Prudential Authority and the currency and exchanges manual ― does not ask banks to be clairvoyant. It asks them to be awake and to report suspicious or unusual transactions when they knew or ought reasonably to have suspected criminality.
The currency and exchange framework goes further for authorised dealers: it demands the gathering, verification and preservation of documentary evidence sufficient to justify cross-border flows. This is the price of the privilege of transmitting other people’s money in a rules-based economy.
The allegations that payments were processed without valid supporting documents and that some bank records were “wilfully” deleted to conceal unlawful conduct are breaches of these core duties and, if proven in court, deserve a remedy with teeth. The task is to draw a line that is sharp enough to bite culpable gatekeepers and sober enough to preserve stability.
That not a single bank has come out to pay back the transaction fees they charged on the Tembisa Hospital criminal flows, effectively retaining a profit from their own compliance failure, is the ultimate confirmation of a perverse financial incentive.
This case lands in a South Africa profoundly weary of corporate double standards. For over a decade and half, the private sector has lectured the country from a high chair of moral judgment while law firms like Norton Rose Fulbright, financial advisers and consulting giants such as McKinsey, Bain and SAP advised, papered, processed and, at times, laundered the proceeds of state capture.
While big banks like Standard Bank, Absa, Nedbank and FirstRand eventually shut Gupta-linked accounts, they did so only when leaks and global scrutiny made the reputational cost of association untenable.
Consulting companies like Gartner, who helped hollow out state institutions, paid back what, against the damage, looked like peanuts. Internal reforms were trumpeted, slide decks were refreshed and market re-entry followed swiftly. This revolving door to corporate rehabilitation stands in brutal contrast to the fate of many politicians and public officials.
Deservedly, VBS executives wear orange overalls while the former Sars leadership was cast out and recommended for prosecution. Yet the private enablers of capture ― auditing behemoths like KPMG and Deloitte, and transaction-structuring dealmakers often operating under international financial brands ― too often settled and moved on, frequently through non-prosecution settlements. The public reads this as a double standard because it is one.
An even more chilling demonstration of corporate enabling is the Tembisa Hospital scandal. The corruption network siphoned off almost R3bn intended for healthcare, through a maze of front companies via some 5,500 transactions ― many after whistleblower Babita Deokaran’s warnings ― that should have triggered immediate red flags within the banking system. This sheer volume represents a catastrophic failure of AML controls at an industrial scale.
While I feel for Sasfin, as one of the smallest South African banks and processing a fraction of transactions, the principle is clear: banks should not be held liable for all their clients’ indiscretions, but their silence and inaction about the ones for which they should be held liable ― the systemic failures ― is what makes them morally liable for all.
That not a single bank has come out to pay back the transaction fees they charged on the Tembisa Hospital criminal flows, effectively retaining a profit from their own compliance failure, is the ultimate confirmation of a perverse financial incentive.
The Sasfin litigation, therefore, is an opportunity to restore symmetry. If as a country we are serious about deterring large-scale economic crime, the price of enabling it, by neglect or by wink and nod, must be set high enough to change behaviour where it matters most, in the boardrooms.
Achebe’s insight is that corruption is not always a thunderclap. It is often a lullaby ― a culture of small surrenders that finally teaches decent people how not to be. The point of the Sars v Sasfin case is to change that culture at the point where money meets gatekeeping.
A fair judgment should acknowledge Trengove’s systemic-risk anxiety and knit it into the wrongfulness inquiry with care. It should affirm that a narrow, duty-triggering constellation ― proven programme failures, gross negligence or wilful blindness to repeated red flags and tight causation ― justifies disgorgement and proportionate damages, while a safe harbour rewards robust compliance and timely reporting. That is not collapse. It is consequence. And if we want a financial system worthy of the high chair of judgment it so often occupies, consequence is the minimum the public has a right to expect.
- Gebe is a political economy and public policy analyst
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