IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
AFRICA COMMUNITY MEDIA (PTY) LTD
ANA STUDIO (PTY) LTD
ALLIED LOGISTICS SOLUTIONS (PTY) LTD
BANNER NEWS -AGENCY (PTY) LTD
CONDE NAST INQEPENDENT MAGAZINES (PTY) LTD
CONTENT NATION MEDIA (PTY) LTD
Case No : 9318/2022
First Applicant
Second App licant
Thrrd Ap plicant
• . Fourth Applicant
Fifth Ap plicant .
S ixth Applicant
INSIGHTS PUBLISHING (PTY) LTD Seventh Ap plicant
I
G LOBAL COMMAND AND CONTROL TECHNOLOGIES (PTY) LTD Eighth App licant
INDEPENDENT MEDIA SOLUTIONS (PTY) LTD N inth Applicant
INDEPENDENT MEDIA SA (PTY) LTD Tenth Applicant
INDEPENDENT NEWSPAPERS _ (PTY) LTD Eleventh Applicant
K A THEA COMMUNICATIONS SOLUTIONS (PTY) LTD Twelfth Applicant
AFRICA ONLINE RETAIL (PTY) LTD Thirteenth A pplicant
ORLEANS COSMETICS (PTY) LTD Fourteenth Applicant
WIKIDEALS (PTY) LTD Fifteenth Applicant
TRIPOS TRAVEL (PTY ) LTD Sixteenth Applicant
INDEPENDENT ONLINE SA (PTY) LTD Seventeenth Applicant
AFRICAN NEWS A G ENCY (PTY) LTD Eighteenth Applicant
SAGARMATHA TECHNOLOGIES LTD N ineteenth Applicant
ANA PUBLISHING (PTY) LTD Twentieth App licant
AFR IC A N NEWS AGENCY PICTURES (PTY) LTD Twe nty-first Applicant
3 LAWS CAPITAL SOUTH AFRICA (PTY) LTD Twe nty-second Applicant
2
SGT SOLUTIONS (PTY) LTD
AFRICA EQUITY EMPOWERMENT INVESTMENT LTD
BUSINESS VENTURE INVESTMENTS NO 1581(RF)'(PTY) LTD .
THE DR . IQBAL SURVE BURSARY TRUST
THE SOUTH ATLANTIC ARTS AND CULTURE TRUST
ESP AFRICA (PTY) LTD
SIZWE AFRICA IT GROUP (PTY) LTD
KALULA COMMUNICATIONS (PTY) LTD
PARTITRUST
and
THE STANDARD BANK OF SA LTD
Tw enty-third Applicant
Tw enty-fourth Ap plicant
Tw enty-fiffh Ap plicant
\
Tw enty-sixth Ap plicant
Twenty-seventh Ap plicant
Twe nty-eighth Applicant
Twen ty-ninth Applicant
Thirtieth Applicant
Thirty-first Applicant
Respondent
C ase No : EC 0S/2023
A FRIC A COMMUNITY MEDIA (PTY) LTD First Applicant
ANA STUDIO (PTY) LTD Second Applicant
ALLIED LOGIST ICS SOLUTIONS (PTY) LTD Third Applicant
BANNER NEWS AGENCY (PTY) LTD Fourth Applicant
CONDE NAST INDPENDENT MAGAZINES (PTY) LTD Fifth Applicant
CONTENT NATION MEDIA (PTY) LTD Sixth Applicant
INSIGH TS PUBLISHING (PTY) LTD Seventh Applicant
GLOBAL COMMAND AND CONTROL TECHNOLOGIES (PTY) LTD Eighth Ap plicant
INDEPENDENT MEDIA SOLUT IONS (PTY) LTD Ninth Applicant
INDEPENDENT MEDIA SA (PTY) LTD Tenth Applicant
INDEPENDENT NEWSPAPERS (PTY) LTD Eleventh Applicant
KA THEA COMMUNICATIONS SOLUTIONS (PTY) LTD Twe lfth Applicant
AFRICA ONLINE RETAIL (PTY) LTD
ORLEANS COSMETICS (PTY) LTD
TRIPOS TRAVEL (PTY) LTD
INDEPENDENT ONLINE SA (PTV) LTD
AFRICAN NEWS AGENCY (PTY) LTD
SAGARMATHA TECHNOLOGIES LTD
ANA PUBLISHING (PTY) LTD
3
AFRICAN NEWS AGENCY PICTURES (PTY) LTD
3 LAWS CAPITAL SOUTH AFRICA (PTY) LTD
SGT SOLUTIONS (PTY) LTD
AFRICAN EQUITY EMPOWERMENT INVESTMENT LTD
BUSINESS VENTURE INVESTMENTS NO 1581 (RF) (PTY) LTD
Thirteenth Applicant
Fourteenth App licant
Fifteenth A pplicant
S ixteenth Ap plicant
Seventeenth A pplicant
Eighteenth App licant
N ineteenth Applicant
Twentieth Applicant
Twenty-first Applicant
Twe nty-second Applicant
Tw enty-third App licant
Twenty-fourth A pplicant
THE DR . SURVE BURSARY TRUST Twenty-fifth A pplicant
THE SOUTH AFRICAN ATLANTIC ARTS AND CULTURAL TRUST Twe nty-sixth Applicant •
ESP AFRIKA (PTY) LTD Tw enty-seventh Applicant
SIZWE AFRICA IT GROUP (PTY) LTD Twe nty-eighth Applicant
PARTI TRUST
KALULA COMMUNICATIONS (PTY) LTD
W IKIDEALS (PTY) LTD
and
THE STANDARD BANK OF SA LTD
LUNGISA FUZILE N .O .
Coram: Justice J C loete
H eard: 15 February 2024
Delivered electronically: 19 February 2024
Twenty-ninth Applicant
Thirtieth A pplicant
Thirty-first A pplicant
First Respondent
Second R espondent
4
JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL
CLOETE J:
Introduction
[1] For convenience the parties are referred to as before. Standard Bank applies
for leave to appeal to the Supreme Court of Appeal against the whole of my
judgment and order delivered on 14 September 2023. The present application ••
was only heard on 15 February 2024 by arrangement between the parties. The
Sekunjalo Group and related entities ("SG") oppose the application. In summary
Standard Bank's grounds of appeal are as follows (and I deal with each in turn
hereunder):
1.1 The relief sought by SG was final in effect; I should have found it to be
so and dismissed the applications (i.e. both High Court and Equality
Court) by applying the test for final interdictory relief and concluding SG
had failed to meet that test;
1.2 The relief I granted was in any event final in effect;
1.3 My order was vague and thus ineffective as well as arbitrary and thus
irregular;
5
1.4 In any event SG failed to even make out a case for interim interdictory
relief; and
1.5 There are conflicting decisions in both the High Courts and Equality
Courts subsequent to the decision of the Supreme Court of Appeal
(SCA) in Bredenkamp 1111 where such courts 'have wrestled' with
applications to interdict the closure of bank accounts, and it would be
desirable for the SCA 'to provide certainty by clarifying when and in what
circumstances a bank may provisionally be interdicted against the
closing of an account of a client'.
Relief sought by SG was final in effect
[2] During argument counsel for Standard Bank properly conceded that: (a) it was
open to me to have granted alternative relief as prayed instead of the primary
(or main) relief sought; and (b) I granted alternative relief (in the form of a
structural interdict for all of the reasons contained in my judgment). That is the
end of this ground of appeal.
Relief granted was final in effect
[3] Cut to its core, Standard Bank's argument is that the fixing of a period of
12 months (i.e. until 11 September 2024) rendered my order final in effect. (It is
not necessary to deal with that portion of my order pertaining to earlier final
1 Bredenkamp and Others v Standard Bank of South Africa Limited 2010 (4) SA 468 (SCA).
6
determination of the main applications since the parties are in agreement this
will not occur before 11 September 2024).
[4] However the reasoning in my judgment, in my respectful view, demonstrates
that my order was not final in effect, particularly when regard is had to paras 25
to 28 thereof.
[5] Various developments have occurred since I granted the September 2023 order
(as partly foreshadowed in para 28 of my judgment). I was informed of these
from the Bar during a·rgument. Some have been adverse to SG and some
favourable to it. Again, in my respectful view, these developments seNe to
reinforce why the parties should be afforded the opportunity to place them, and
their respective views on their implications, properly before the court at the next
hearing.
[6] This will enable that court to reach an informed decision about whether any
relief should be granted to SG subsequent to 11 September 2024. I cannot take
the implications of these subsequent developments into account for purposes
of considering whether leave to appeal should be granted. I am bound by the
four corners of my judgment.
7
[7] Moreover I do not understand the legal position to be that the mere fact of a
fixed duration automatically translates into final relief. It all depends on the
circumstances. In AplenP· Vivier JA stated:
'The interim interdicts sought would have been operative for the duration of the
Appellants' detention. In this sense it would have had final effect in that nothing
which may subsequently have been decided could detract from the efficacy
which the orders enjoyed while they were in force. However, on the facts of the
present applications the grant of interim interdicts did not involve a final
determination of the rights of the parties and did not affect such d_etermination ...
The grant of interim interdicts did not amount to any finding on the facts, which
would only have been made , together with appropriate orders as (o costs, upon
the final determination of the issues between the parties. Although final in
effect, the interdicts sought were thus certainly not final in substance. The fact
that the determination of the issues would only have taken place after the risk
of injury had passed was obviously no bar to the grant of the orders ... '
[8] I have been unable to find any authority which has overturned this longstanding
principle. The very purpose of the structural interim interdict I granted was to try
to do justice to both parties pending the outcome of parallel litigation and
progress with case management , as is evident from paras 25 to 28 of my
judgment. It follows that this ground of appeal fails.
Order vague and thus ineffective as well as arbitrary and thus irregular
[9] The 'arbitrary and thus irregular' ground fell away as soon as counsel for
Standard Bank made the concession that I was entitled to have granted
alternative relief. The vague and incapable of implementation ground is founded
.\
2 Apleni v Minister of Law and Order and Others 1989 (1) SA 195 (AD) at 2001-201 D.
8
on the contention that I incorporated into the order 'a dispute between the
parties relating to' FICA.3
[1 0] Standard Bank argues that by prohibiting it from closing SG's accounts for the
reasons stated in its termination notices dated 25 April 2022, 7 July 2022 and
26 July 2022, my order is reasonably capable of bearing irreconcilable
meanings. My response on this score is as follows.
[11] First, as pointed out in para 29 of my judgment the notices dated 7 and 26 July
2022 did not appear to form part of the papers before me. It was not submitted
during argument that I erred in this regard. Second, an ambiguity can be cured
under rule 42 of the uniform rules of court but Standard Bank elected not to go
this route, instead seeking to advance it as a ground of appeal without
disclosing the contents of the missing letters.
[12] Third, the effect of any inability to conduct due diligence under s 21C of FICA
going forward was not Standard Bank's case before me. It relied ori: the inability
to conduct due diligence in the past, and the purpose of interdictory relief
(whether interim or final) is not to prevent past unlawful conduct. Fourth, and in
any event, my order did not preclude Standard Bank from terminating SG's
accounts for any reason other than those contained in its termination letters,
and para 4 of my order specifically provided that the structural interim interdict
3 Financial Intelligence Centre Act 38 of 2001.
9
would not apply to its statutory reporting obligations contained in s 29 of FICA.
This ground of appeal thus also fails.
SG failed to make out a case for interim interdictory relief
(13] During argument it was contended by Standard Bank that I applied the incorrect
.
test in order to determine whether SG had established a prima facie right albeit
open to some doubt, includ_ing one based on s 22 of the Constitution, namely
freedom of trade (as well as occupation and profession). Although SG also
relied on s 34 of the Constitution the law is clear that such reliance, on its own,
,!
does not provide a ground for any form of interdictory relief.4
(14] Mindful of the approach laid down in EFF v Gordhan ,5 I was persuaded that,
applying the Webster v Mitche/16 test, on this legal issue I could not find SG had
no prospect whatsoever of obtaining final relief in the pending main
applications. An additional factor was that ·at the time I heard the urg~nt
applications it was too early to predict whether the m ain applications might be
referred to oral evidence or to trial. I then followed the majority decision in
Eskom 7 as is apparent from para 13 of my judgment.
(15] If anything, Standard Bank's fifth ground of appeal to which I have referred,
i.e. the contention that there are conflicting decisions on interim interdictory
4 National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) at paras [49] and
[50]. in the context of s 33 of the Constitution pending a review.
5 Economic Freedom Fighters v Gordhan and Others 2020 (6) SA 325 (CC) at para [42].
6 Webster v Mitche/11948 (1) SA 1186 (W) at 1189.
7 Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others [2022] ZACC
44 at paras [241] to [251].
10
relief in relation to banks closing client accounts, supports my view in respect
of that prima facie right rather than detracting from it (for present purposes it
does not matter that I disagree with Standard Bank's contention as appears
from what follows hereunder, but this is Standard Bank's own case). It is also
my understanding of the law that it is not incumbent on a party seeking
interdictory relief to establish every single ground relied upon in order to obtain
it.
[16] As regards the recent decision of the SCA in Nedbank l/1,8 on my reading
thereof the issues are distinguishable from those in the matters I was required
to determine, in particular no mention is made of any reliance by SG on s 22 of
the Constitution.
[17] Having considered the lengthy submissions of counsel (because I do not set
them all out does not mean I have ignored them) I am not persuaded that this
ground of appeal meets the required threshold.either.
Conflicting decisions on the application of Bredenkamp Ill
[18] Counsel for SG argued, persuasively in my view, that Standard Bank's reliance
on "conflicting" decisions in the context of my judgment is misplaced. I deal.
briefly with each. Oakbay9 concerned declaratory rather than interdictory relief.
Annex Distribution 110 concerned an "interim interim" interdict.
8 Nedbank Ltd & Another v Surve and Others 2023 JDR 4811 (SCA).
9 Minister of Finance v Oakba y Investments (Pty) Ltd and Others 2018 (3) SA 515 (GP ).
10 Annex Distribution (Pty) Ltd and Others v Bank of Baroda 2018 (1) SA 562 (GP).
11
[19] In Annex Distribution //11 the court granted an application for interim interdictory
relief against a bank threatening to close the applicants' bank accounts pending
the outcome of a review. The court however distinguished Bredenkamp Ill on
two grounds, including that no public policy consideration was involved in that
case. Likewise, for present purposes, in Bredenkamp Ills 22 was ultimately not
implicated, as is evident from the following passage of the judgment:
'[30] The second is this: although the appellants, in the part. quoted from the
notice of motion, recited nearly every provision of the Bill of Rights, counsel
stated that they do not suggest that the exercise of the right to terminate
"implicated" any constitutional principle. It is accordingly not their case that the
closing of the account compromised constitutional democracy, or their dignity,
freedom or right to equality and the like, and the expansive interpretation of the
Bill of Rights does accordingly not arise (s 39(1 )). The case is about fairness
as an overarching principle, and nothing more. '
[20] Annex Distribution 11112 and Talhado13 were firmly rooted in the purely
contractual nature of a bank/client relationship. In Nedbank 114 the court
dismissed SG's application for interim interdictory relief due to absence of
jurisdiction. Ayo 15 did not deal with the merits of the urgent interdictory relief
sought. The application was simply struck from the roll for lack _of urgency.
Nedbank Ill I have already dealt with.
11 Annex Distribution (Pty) Ltd and Others v Bank of Baroda [2017] ZAGPPHC 639.
12 Annex Distribution (Ply) Ltd and Others v Bank of Baroda [2018] ZAGPPHC 6.
13 Talhado Fishing Enterprises (Pty) Ltd v Firstrand Bank Ltd tla First National Bank [2022]
ZAECQBHC 15.
14 Surve and Others v Nedbank Ltd and Another [2022] ZAWCHC 19.
15 Ayo Technology Solutions Ltd v Access Bank South Africa Ltd [2022] ZAWCHC 218.
12
[21] Finally, the very recent dismissal by the Constitutional Court of SG's application
for leave to appeal a Competition Appea l Court judgment wou ld have involved
the consideration of a different standard for interim interdictory relief, namely
that contained in s 49C(2)(b) of the Co m petition Act.16
[22] In any event, given the nature of my September 2023 order, it is my view that it
would be premature for the SCA to be burdened with having to determine a
matter of such constitutional importance whe re the hearing as to whether my
order should be extended, amended or discharged will take place within the
next six months or so. Whatever order the court may grant at the next hearing
may or may not be appealable. Accordingly this ground of appeal also fails.
Whether it is nonetheless in the interests of justice for leave to be granted
[23] App lying the interests of justice test, 17 I am also not persuaded to grant leave
for the reasons contained in paras 5, 6, 8, 12, 14 and 22 of this judgment. To
this I wish to add the follow ing.
[24] First, Standard Bank could have insisted on a much earlier date for this
application to be heard. Instead it wa ited for 5 months into a 12 month period.
Second, it was only when I pointed out to its counsel during argument in reply
that I could not dictate to the SCA when it should entertain the appeal if leave
were to be granted that - suddenly - an undertaking was forthcoming from
Standard Bank, despite its dire predictions on irreparable harm, not to close
16 No 89 of 1998.
17 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others 2023
(1) SA 353 (CC).
13
SG 's accounts pending any SCA judgm ent. This is unacceptable, and in any
event counsel for SG were ~eprived of any prior notice of this undertaking and
thus the opportunity to prepare and deal properly w ith it.
[25] In the result the following order is made:
The applications for leave to appeal are dismissed with costs, including
the costs of two counsel where so employed in both case numb ers
9318/2022 and ECOB /2023.
JI CLOETE
Case N o: 9318/2022
For applicants in court a quo and respondents in application for leave to appeal:
Adv Vuyani Ngalw ana SC , Adv Karabo Mvubu
Instructed by: Adriaans Attorneys (A Adriaans)
For respondent in court a quo and applicant in application for leave to appeal:
Adv Rob in Pearse SC , Adv Phumlani Ngcongo , Adv Zane le Ngakane
Instructed by: Herbert Smith Freehills South Africa (J Ripley-Evans)
Case No : ECOS /2023
For applicants in court a quo and respondents in application for leave to appeal:
Adv Muz i S lkhakhane SC , Adv Isaac Shai
Instructed by: Adriaans Attorneys (A Adriaans)
For respondent in court a quo and applicant in application for leave to appeal:
Adv Rob in Pearse SC , Adv Phumlani Ng congo , Adv 2anele Ngaka ne
Instructed by: He rbert Smith Freehills South Africa (J Ripley-Evans)