Reserve Bank hits back at Sipho Pityana

The Reserve Bank’s Prudential Authority has hit back at Sipho Pityana, saying in court papers filed on Tuesday that it did not thwart his chance of being Absa chairperson as he was not nominated for the position and he “simply failed to convince” the Absa board to nominate him.  

In addition, the Prudential Authority said it did not tell Absa through an informal process that it would object to Pityana's nomination. Rather, it said: “The authority continued to assert that the allegations of sexual harassment and the findings in the Barnes report [commissioned by AngloGold Ashanti into allegations of sexual harassment against Pityana] were serious concerns that the Absa Board must deliberate on, including its potential impact on Absa's reputation.”

Pityana was formally chairperson of AngloGold Ashanti where he resigned in December last year.

He has denied the allegations of sexual harrassment.

In court papers filed with the high court in Pretoria, Kuben Naidoo, CEO of the Prudential Authority, said the AngloGold Ashanti investigation found that “there was sexual harassment on the part of Mr Pityana and that his utterances and actions were inappropriate”.

Pityana alleged that current AngloGold Ashanti chairperson Maria Ramos, disclosed the sexual harassment allegation to Naidoo. 

But Naidoo said: “Ms Ramos indicated that there were issues relating to the resignation of Mr Pityana from the AngloGold Ashanti board, and there was an investigation report but that she could not discuss these with me.”

As a result Naidoo alerted the Absa board to look into the circumstances of Pityana's resignation from AngloGold Ashanti's board.  

“The key difficulty for Mr Pityana is that it is common cause that no written notice of his nomination as a chairperson of the Absa Board was ever submitted by Absa to the authority as envisaged in ... the Banks Act. Instead, the facts set up by him in his founding affidavit make it clear that despite his representations to the Absa Board, the board decided not to nominate him as chairperson and instead decided to nominate an external candidate, Mr Sello Moloko,” Naidoo said. 

This comes after Pityana launched court action against the Prudential Authority for alleged interference in his appointment as Absa chairperson. Since then Pityana was ousted as Absa's lead independent director.

Naidoo said the authority did not at any time preclude the nomination and it “simply pointed out the concerns that would have to be addressed by Absa in respect of such a nomination. Mr Pityana simply failed to convince Absa to nominate him.”

In his court papers, Pityana has asked for a declaratory order that the Prudential Authority acted “unlawfully” and “in excess of its powers” by engaging in an informal process that prevented his nomination as chairperson of Absa.  

He alleged that through an “informal process”, the Prudential Authority conducted deliberations about him that involved external parties – in particular Ramos, about a “false and untrue allegation” of sexual harassment that was made against him in 2020.  

Naidoo said the relief sought is “impermissible”.

“Where an applicant seeks a declaratory order there must be some material effect to the order or advantage obtainable from the relief sought. The court’s jurisdiction cannot be exercised to decide and declare abstract, academic or hypothetical questions which have no tangible benefit to the applicant.”

He said Pityana sought a declaratory order as a prelude to and to assist him in a damages claim. But he has no damages claim against the authority.

Naidoo said the real dispute that Pityana has is not with the authority, but with the Absa board for refusing to nominate him for appointment as chairperson. He said Pityana's application must be dismissed with costs.

Business Times