Tribunal refuses to extend Sekunjalo's relief on closure of bank accounts

The Competition Tribunal announced on Tuesday it has dismissed an application by the Sekunjalo Group for the further extension of an interim relief order granted by the tribunal in September last year. 

Sekunjalo, which comprises 35 applicants, had brought the interim relief application claiming that the conduct of various banks - in terminating the banking relationship with them or refusing to provide banking and payment services to them - constituted an abuse of dominance and/or collusive conduct in contravention of the Competition Act. 

The banks had justified their conduct on the basis of the reputational risk of dealing with the Sekunjalo Group due to findings of malfeasance and impropriety made by Justice Lex Mpati, who chaired a commission of inquiry into the dealings of Ayo (a company affiliated with Sekunjalo) with the Public Investment Corporation.  

The interim relief was granted for six months or pending the conclusion of an investigation by the Competition Commission into a complaint filed by Sekunjalo in December 2021 against the banks, whichever occurs first. 

The six-month period would have ended on March 16 this year. In February, the interim relief order was extended to September 16 following an unopposed extension application by Sekunjalo.  

Since the commission’s investigation was still not completed by September 2023, Sekunjalo sought a further extension of the tribunal’s interim order until December 2024.   

Meanwhile, in October last year, Standard Bank, Access Bank and Mercantile Bank noted appeals and filed reviews with the Competition Appeal Court (CAC) against the tribunal’s decision of September 16 to grant interim relief.   

In July, the CAC upheld the appeals and set aside the tribunal’s order which granted interim relief.

In August Sekunjalo filed an application for leave to appeal to the Constitutional Court. The matter is yet to be heard.   

In dismissing the extension application, the tribunal considered, among others, whether it may extend the interim relief in circumstances where the CAC had set aside its decision to grant interim relief, and where the CAC’s decision is being appealed to the Constitutional Court.      

The tribunal noted that generally, an appeal suspends the operation and execution of a decision of a lower court.  

However, the tribunal found that it was bound by the points of law on which the CAC has pronounced, and departing from this judicial hierarchy would likely result in chaos.   

The tribunal found that the appeal of the CAC’s decision by Sekunjalo to the Constitutional Court does not suspend the legal principles in the CAC’s decision and, therefore, does not revive the tribunal’s interim relief decision.

A public version of the tribunal’s reasons will be available on its website once any confidential information in the reasons has been finalised.

TimesLIVE