The Competition Tribunal (“Tribunal”) has dismissed an application by the Sekunjalo Group (comprising 35 Applicants) for the further extension of an interim relief order granted by the Tribunal on 16 September 2022.
The Sekunjalo Group had brought the interim relief application, claiming that the conduct of various banks, in terminating the banking relationship with them and/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 Act”).
The interim relief granted by the Tribunal on 16 September 2022 prevented three banks (Standard Bank of South Africa Ltd; Mercantile Bank Ltd, a division of Capitec Bank Ltd; and Bidvest Bank Ltd) from closing certain bank accounts of certain Applicants and ordered five others (Nedbank Ltd, ABSA Bank Ltd, FirstRand Bank Ltd, Sasfin Bank Ltd and Access Bank Ltd) to reopen certain bank accounts that had already been closed.
The interim relief was granted for a period of six months or pending the conclusion of an investigation by the Competition Commission (“Commission”) into a complaint filed by the Sekunjalo Group on 15 December 2021 against the banks, whichever occurs first. The six-month period would have ended on 16 March 2023. In February 2023, the interim relief order was subsequently extended to 16 September 2023 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 2022 Standard Bank, Access Bank and Mercantile Bank noted appeals and filed reviews with the Competition Appeal Court (“CAC”) against the Tribunal’s decision (of 16 September 2022) to grant interim relief.
On 17 July 2023, the CAC upheld the appeals, setting aside the Tribunal’s order which granted interim relief.
On 7 August 2023, the Sekunjalo Group filed an application for leave to appeal to the Constitutional Court. The matter is yet to be heard in the Constitutional Court.
In dismissing the application, the Tribunal considered, among others, whether it may extend interim relief in circumstances where the CAC overturned and 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). The Tribunal further found, however, that it is 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 noted the CAC’s finding that there was no
prima facie evidence of a prohibited practice by the banks. It concluded:
“This is the legal principle in the CAC’s decision to which we are bound since we must follow decisions on points of law of the CAC”.
In summary, the Tribunal has found that the appeal of the CAC’s decision by the Sekunjalo Group 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 the Tribunal’s website at
www.comptrib.co.za once any confidential information in the reasons has been finalised.
