amaBhungane analysis: Iqbal vs the banks - Survé's conspiracy theories unpacked

Even if there's not really an economy-wide plot against Iqbal Survé, the de facto boycott threatening his empire still raises questions about the power of the banks.

The respondents are Absa, FirstRand, Nedbank, Standard Bank, Mercantile Bank (now part of Capitec), Investec, Sasfin Bank, Bidvest Bank and Access Bank. The application was heard last week and the Tribunal has reserved judgment.The banks, for their part, have indulged in some cynical defences. A constant refrain has been that Survé can pick and choose between“70” other banks in South Africa. They are all aware that most of those“banks” are just representative offices of foreign banks or tiny niche outfits that simply cannot bank the Sekunjalo group.

The bank 'boycott' is effective and it is disingenuous to pretend otherwise: their exit represents an imminent threat to the functioning of Survé's companies.Only Standard Bank still officially retains him as a client,but is 'reviewing' the relationship

. Through a parallel court process Survé has partially succeeded in persuading the Equality Court to temporarily interdict Nedbank from closing some of his remaining accounts.Still, in the long run he faces a forced fire sale of subsidiaries or business rescue, which would get Survé out of the picture and maybe safeguard the actual businesses and their employees. headtopics.com

Survé has repeatedad nauseamthe banks' own slightly perfunctory assurances to him that they are not accusing him of having done anything illegal.It is nonetheless easy to understand the banks' point of view. Public and private records show Survé has made himself a very undesirable client: his companies' baroque financial arrangements demand deep and unrewarding engagement if the banks are to meet their

Know Your Clientand anti-money laundering assessment and reporting obligations.The position taken by the banks is that the banking relationship is in any case a contractual one: they are entitled to terminate that relationship in accordance with the contractual terms – usually one month's notice – and they are not even required to provide an explanation, though in Survé's case they have done so at length.

Survé has tried to suggest they acted in concert – as part of a media-fuelled campaign to shut him down.The banks have argued that they all operate under the same rules and similar risk regimes, so it is not surprising they have independently come to the same conclusion about him as a client.

And, in reaction, Survé has gone into full slander mode, leading to a vicious cycle of sorts where the banks have an ever-dwindling incentive to come near him.READ | amaBhungane | Strike 3: Is Iqbal Survé finally unbankable？A case to answer？ headtopics.com

But, notwithstanding Survé's mudslinging in the Tribunal case, he has also argued persuasively that no modern business can operate without access to the banking system – and that therefore there are real questions to be asked about how banking discretion operates and whether competition law could or should do anything about it.

The temporary order Survé is hoping for – the reinstatement of his banking facilities – is a stretch, but such an order would give Sekunjalo breathing space until a complaint laid at the Competition Commission in December is either rejected or referred back to the Tribunal for proper prosecution.

That referral is in effect supported by the Commission.In an affidavit filed at the Tribunal, the Commission has asked that a number of Survé's legal arguments be left undecided because they are worthy of serious consideration outside the rushed interim proceedings.

These include concepts developed in US and European competition law such as“group boycotts” and“collective dominance” – which have so far not been incorporated into our law.To a layman the banks certainly have enormous collective power whether or not they are intentionally deploying it in concert. If you are headtopics.com

persona non gratato the banks, you are effectively toast.But is it a competition case？In framing his battle against the country's banks as a competition complaint Survé has struggled to find a“theory of harm”.It is clear who gets hurt but not at all clear who benefits or why the banks have any incentive to destroy Sekunjalo, which is after all a large paying customer.

However brutal and devastating the cumulative actions of the banks may be, that does not mean they constitute a transgression in competition law.The banks argue that they all independently addressed reputational risks which happens to lead to the same outcome because they all operate in the same regulatory environment.

While none of Survé's companies compete with the banks, Survé argues that the banks' actions reduce competition in the markets where Sekunjalo companies do operate by inevitably shuttering these businesses.To achieve this the banks have colluded and abused their dominance in contravention of the Competition Act, he argues.

Why would they？This question looms large over the technical arguments and sometimes brutal digs exchanged in the hundreds of pages of court papers filed by Survé and the banks.Survé, in an affidavit on behalf of himself and 35 companies in the Sekunjalo group, disputed that it matters:

“It is not a requirement of the Competition Act that the applicants must show that the respondents stand to benefit from their prohibited conduct. It is sufficient to show that competition is harmed by the conduct of the respondents. In this case, competition harm is manifest.”

That has not stopped him from repeatedly theorising about why the banks have allegedly launched a coordinated campaign to destroy Sekunjalo.Conspiracy 1: The PICThe PIC in many ways summoned Survé's conglomerate into being with repeated investments over the years totalling several billion rands.

The state-owned asset manager funded his takeover of Independent Media in 2013. It was the main subscriber in shares when Survé listed Premier Fishing & Brands in 2017. Then it made a highly irregular investment of R4.3 billion in Ayo Technology Solutions later in the same year. It was by all accounts set to give Survé billions more in 2018 when he tried, and failed, to list Sagarmatha Technologies.

The relationship has since soured.The PIC is now trying to liquidate the company through which Survé took control of Independent after it defaulted on loan repayments.The PIC is also trying to recover the billions it stuck in Ayo, which would effectively smash Survé's piggybank.

Despite the PIC seeming to proceed with these legal steps somewhat reluctantly and at a snail's pace, Survé appears convinced the organisation is out to get him by other means.“It is quite possible that the PIC may have lobbied the banks to close the bank accounts of the applicants. The PIC is a substantial shareholder in most of the banks,” said Survé in his affidavit.

Elsewhere Survé refers to“our view that this is the PIC behind this”.During the hearing of the matter Sekunjalo's counsel Advocate Vuyani Ngalwana backtracked slightly in response to a question from the Tribunal's chair Mondo Mazwai:

“No, chair, we are not saying the PIC controls the banks, we are saying … that an agreement to engage in prohibited horizontal conduct is presumed if the firms involved have a substantial shareholder in common. We don't take it any further than that.”

He then however went further anyway, getting to the crux of the theory.“We are saying that the banks, because they have this substantial shareholder in common, they have an interest in the success of the PIC's litigation against Ayo. And so they will do everything in their power to ensure that anything that goes against the PIC is thwarted. We don't take it any further than that, chair.”

Ayo is to a large extent the reason Survé has found himself in his current situation after investigative reporters and ultimately the Mpati Commission of Inquiry revealed massive irregularities with the PIC investment in Ayo.The PIC does own minority stakes of between 6% and 14% in all the banks, or at least the JSE-listed ones.

It's not clear if that counts as“substantial” and, as at least one bank has pointed out, the PIC has no representatives on any bank's board and Survé produced no evidence to back up his allegations.Conspiracy 2: The regulatorAccording to Survé's affidavits even the South African Reserve Bank (SARB) and its Prudential Authority (PA) are party to the conspiracy to destroy Sekunjalo.

Here he makes some of the most serious allegations in his lengthy court papers, including those recently filed at the Equality Court.In his Equality Court affidavit he claims that“highly placed sources within Absa ... and FNB have said that the Prudential Authority or the Reserve Bank has signalled to all of them [banks] to shut down the Sekunjalo Group companies accounts.”

In his Tribunal papers he cites the same allegations.The Commission should be given an opportunity to investigate the veracity of the allegations that compliance officers of the respondent banks have worked closely with the Prudential Authority to unbank Sekunjalo. This has been widely reported to us and our company executives in our engagement.

“I have written to the Prudential Authority requesting that they clarify if indeed this is the case and on which basis they would flag our group. They have denied this involvement, but only the Commission has the power to investigate this further.”

In a response to amaBhungane questions, the Authority said,“The PA denies the allegation which is without any basis or evidence.”Citing a November 16, 2021, letter PA chief executive Kuben Naidoo had written to Survé, the PA told amaBhungane,“Mr Kuben Naidoo's letter… stated that the PA had not discussed Sekunjalo Group's accounts with any bank or banker or other third party, however, should Mr Survé have any such evidence he was welcome to share it with Mr Naidoo.”

Survé also claimed in his affidavit that Naidoo had told the Sekunjalo Group that banks could only close accounts when they were used for illicit financial flows, or to finance terrorism, or for purposes of money laundering.In response the PA said this was not accurate and that Naidoo had explained in writing that the PA had“no power to intervene on behalf of a customer, company or private individual in their relationship with their bank or any other financial services provider”.

“Banks must comply with the law when they close accounts. The courts have clarified that as a regulator the PA has no role to play in this regard, as the relationship between the client and its bank is private, unless banks are discriminatory in their application of the law. If the aggrieved party is of the view that the banks are breaking the law or are practising discrimination, then they must go to the courts or the FSCA [Financial Sector Conduct Authority].”

Conspiracy 3: Racist banksAnti-competitive conduct normally aims to raise prices or exclude competitors, but Survé says that“in this instance, the purpose of the coordinated conduct by the respondent is to remove the participation of firms that are owned by historically disadvantaged persons”.

Ngalwana also expanded on the banks' alleged“common policy”, which is to“remove black companies from the economy that are in competition with the banks customers in predominantly white-owned spaces”.He provided no evidence for this claim, but it is a mainstay of Survé's argument in his court papers, but also in the sustained campaign against critics waged through Independent Newspapers, that he is the victim of a racist establishment.

A supposedly grassroots #racistbanksmustfall campaign has sprung up and appears heavily invested in Sekunjalo's fate.It held a march in Cape Town this week marking a preliminary procedural hearing in the Equality Court where Nedbank was ordered to maintain Survé's accounts for at least three more weeks.

The movement, according to its paraphernalia, is concerned with how poor black people and aspiring black businesspeople are blackballed by banks.Survé is a strange champion for this cause.As a very rich man with his personal wealth in 2007 declared to be R1.26 billion, Survé was, until recently, very well served by the banks he is now battling in court.

His numerous mortgages and personal credit facilities totalling well over R100 million are detailed in the court papers while his companies' multimillion-rand facilities with various banks are detailed in their financial statements.Still, the fact that Sekunjalo is black-owned is itself now the argument for authorities to shield it.

“I am… advised that the conduct of the respondents engages constitutional values of equality and freedom. A refusal to provide banking and payment services to a black-owned and black-controlled firm is one of the worst infringements of this equality and freedom. It undermines the transformation and economic redress project that is central to our Constitution and competition law,” Survé says in his papers.

More importantly, his argument is that“white” companies that have done worse things than what he is alleged to have done still have accounts with the banks boycotting him.His primary examples are Steinhoff, Tongaat Hulett and EOH – all of which had executives carry out grotesque accounting fraud leading to billions of rands in value destruction when discovered.

The position of the banks is that all these companies fired their executives and underwent large-scale investigations to clean up the rot.In turn the banks have aired Survé's personal financial affairs in court papers and, particularly in the case of Investec, strongly suggested that he has funded his personal assets with money leeched from Ayo.

For Survé this is more evidence of racism:To emphasise the discriminatory practices of these respondents they accept that conglomerates that are white are able to transfer funds between companies but because we are a black conglomerate this is somehow irregular. The inherent racism and hypocrisy is mind-boggling.

“The respondents try and pollute this case by referring to transfers to beneficiaries of the family trust, the Haraas Trust, such as family members, and refer to expenditure to certain credit card items. This is designed to embarrass me…”There is something inherently racist about this, as they would never question the right of someone who has such a portfolio who is white, he says.

Conspiracy 4: #StratcomSurvé makes much of the fact that many of the banks relied on media reports when pleading reputational damage, including not a few amaBhungane ones.This dovetails with Survé's long war of words with his perceived mortal enemies: us and rival media in general.

Full disclosure: Survé is currently suing the author of this article jointly with our publishing partner Daily Maverick for R3 million.The summons cites two articles from more than a year earlier, but is vague about what we got it wrong.Survé has not demonstrated any significant error in our coverage and it has also long been Sekunjalo's policy to ignore media queries from us.

At the Tribunal he has complained about how“the executive director of amaBhungane is on record, on radio, television, online and in print along with other editorial people at amaBhungane in publicly stating their hatred for myself and their determination to destroy Sekunjalo and Independent Media”.

He fails to provide a reference.Survé's newspapers have also made a vast array of accusations about Daily Maverick proprietor and editor Branko Brkic, even suggesting that he has some vicarious case to answer for ethnic cleansing in Serbia in 1992.

In his affidavits Survé also resurrects a theory of his that hedge funds and asset managers worked with journalists to short the shares of Ayo – suggesting this was the“real” reason the shares became nearly worthless.“They (funds) worked in concert with journalists and guest writers in media publications that are competitors of Independent Media and detractors of Sekunjalo,” he says.

He omits to mention thatis in fact being investigated by the Financial Sector Conduct Authority – against him, for possibly manipulating the Ayo share price upwards.Gupta precedentOnce we step away from Survé's rhetoric, the question remains as to whether the banks' actions are justified.

The only comparable precedent to what Survé is going through is the unbanking of the Gupta family in 2016.The banks can more than anyone else be celebrated rightly as the ones who ultimately sent the infamous brothers and their coterie packing.Back then, former president Jacob Zuma dispatched Cabinet ministers to twist banks' arms and threaten an inquiry.

But even at the height of state capture political pressure proved incapable of forcing the banks to back off, despite the fact that, as their friends in the“RET” trenches liked to point out, the Guptas were convicted of no crime.Neither has Survé, despite an array of questionable dealings.

Few will mourn this kind of devastating un-banking when it comes to national 'villains'. Banking the disreputable can invite censure from international correspondent banks and both local and international authorities, which is part of the case the banks are making.

So the competition authorities being asked to very possibly force banks to transgress regulations in what is rightly the most regulated industry of all. That's clearly not a great idea.But what about other clients？The banks are fundamentally relying on the assertion that, whether or not Survé is guilty of anything, they have an inalienable right to not do business with him.

It is after all in the contract he and everyone else for that matter signed when they opened bank accounts.But the issue might be more complicated than that, as the competition authority suggests in an affidavit by Commission legal counsel Luke Rennie.

He told the Tribunal,“I submit that the exercise of contractual rights can, and often does, in appropriate circumstances, give rise to competition concerns… for example, if the exercise of contractual rights is a function of market power or the relevant terms of the contract are a manifestation of market power.”

That feels like a point worth taking up.If only Survé could stick to arguments like these.