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23 Jun 2022
BY Aslam Moosajee

Zondo: clients suspected of illegal transactions should have a say before banks close their accounts

In the final State Capture report made public on 22 June 2022, Judge Zondo stated that it is unacceptable that an institution as powerful as a bank should have no obligation to hear what a client has to say before the bank may close the client’s account on suspicion that the client may be involved in illegal or corrupt transactions. This contradicts a previous Supreme Court of Appeal ruling.  

In justifying his views, Judge Zondo acknowledged that although the relationship between banks and clients may be contractual, this factor has not necessarily previously prevented parliament’s intervention to infuse the notion of fairness in the relationship. For example, South Africa has statutes dealing with the termination of employment relationships and others dealing with the eviction of property occupants.

Judge Zondo recommended that existing legislation governing banks should be amended to introduce the requirement of fairness or, if warranted, a new piece of legislation should be enacted to provide for the requirement of fairness.

South Africa already has conduct standards that banks must comply with, including banks’ obligation to treat customers fairly and to provide reasons when terminating a relationship with a customer or refusing a product to a customer.

It is not clear why the recommendation was not limited to legislation being enacted for the purposes of requiring the bank to provide a customer, whose account the bank intends to close, the opportunity to be heard prior to the bank making its final decision. Such a right to be heard on the part of the customer may also raise interesting questions about whether a bank is entitled to terminate a relationship in order to protect its reputation and in circumstances where the customer denies negative allegations made about that customer in the media.

While banks might not be thrilled with Judge Zondo’s recommendation, they will take comfort that Judge Zondo found that the termination of the bank accounts associated with the Guptas was justified on the facts. The Chief Justice found that there was no evidence to support the accusation that the decision to terminate these accounts was taken to advance the agenda of white monopoly capital. Judge Zondo found that the decisions of the banks were taken in light of their legal obligations when a client appears to be involved in suspicious transactions that could cause a bank reputational damage.

Judge Zondo also found that the Inter-Ministerial Task Team chaired by then Minister Zwane improperly intervened in the closing of the bank accounts of the Gupta-owned companies, to advance the cause of the Guptas.  He also stated that on the evidence before the Commission, there could be no doubt that former President Zuma wanted the Inter-Ministerial Task Team to come to the assistance of the Guptas and this constituted an improper interference in the relationship between the banks and their clients.

This was also in breach of the Constitution, which requires members of cabinet not to act in any way that exposes them to the risk of a conflict of interest. Judge Zondo also found that former President Zuma’s conduct in relation to the closure of the Guptas bank accounts was in breach of the Executive Members Ethics Act.

Judge Zondo concluded that former Minister Zwane used public resources in an effort to get done what the Guptas wanted. This was in breach of the constitutional obligation to exercise public power in good faith and for a proper purpose. Judge Zondo also stated that it was improper for cabinet to get involved in the matter of the banks closing the accounts of the Guptas.

Judge Zondo questioned why the ANC got involved in having meetings with some of the banks that closed the bank accounts of the Guptas. He is of the view that the cabinet should have left the matter to the relevant regulatory body.

 

Aslam Moosajee

Executive | Dispute Resolution

amoosajee@ENSafrica.com