In the months before it decided to close Iqbal Survé and his Sekunjalo group's accounts, Nedbank questioned payments to, among others, former African National Congress (ANC) spokesperson Carl Niehaus, International Relations Minister Naledi Pandor's daughter, and China's state media agency.

The bank was also concerned about a R25-million payment made from the group's African News Agency (ANA) media company into Survé's personal account and then transferred out again that same day – and grew even more perturbed when Survé's sister, Aziza Amod, described that payment as "Dr Ml Survé: settlement agreement spouse".

Surve later denied the money was transferred to pay a divorce settlement and said his sister's response to Nedbank's query had been "incorrectly stated, and I have asked Aziza to copy me going forward on the responses to Nedbank". 

"The transfer was in lieu of an intercompany loan between ANA and Sekunjalo Investment Holdings, the holding company for ANA. For the record, Aziza indicated at no stage did she mention a divorce settlement as mentioned in point "c" per the attached letter... For the record, ANA did not pay any amount ... for any divorce settlement…"

In court papers, Nedbank's chief legal counsel, Zanele Mngadi, said the bank found it odd that it received inconsistent explanations for the R25-million transferred from ANA to Surve's personal account and that it was subsequently referred to as an intercompany loan. 

"If this was truly an intercompany loan, why was it paid into Dr Surve's personal account?" she asked, before adding that "no intercompany loan agreements were furnished to Nedbank in support of the explanation provided."

She added that, while Surve contended that his sister "had at no stage mentioned a divorce settlement when her email dated 15 April 2021… specifically recorded that the R25-million was paid in terms of a specific settlement agreement". 

These were among the multiple misgivings that Nedbank claims informed its decision to cut ties with Survé and Sekunjalo – particularly, it said, because of the inadequate answers it received from the group.

In a letter to Survé and his companies, the bank further explained that a "detailed transactional analysis of the accounts held by Sekunjalo Investment Holdings Pty Ltd were conducted and the responses received by Nedbank to queries in relation to certain transactions were found to be unsatisfactory".

Court papers reveal that those answers, which were given by Amod, included the following explanations for payments:

Two payments totalling R30 000 to Carl Niehaus were "a loan to Mr Niehaus who was experiencing financial distress and requested assistance";

Three payments totalling R297 916.67 to Pandor's daughter, Aisha, for "her non-executive directors fees serving on the board" of Sekunjalo Group technology company Sagarmatha Limited. According to Amod, "Dr Aisha Pandor has a PhD in genetics and is a tech entrepreneur. These payments are her Sagarmatha board emoluments. Her appointment has nothing to do with her mother, Naledi Pandor"; 

Two payments totalling R276 000 to Xinhua News Agency, the state media agency of China, "for the Syndication News Wire feeds for ANA";

A payment of R30 000 to Assetou Koite, the president of the Pan African Women's Organisation, for an "African Women's Conference";

Two payments totalling R50 000 to the now late Dr Wallace Mgoqi, a former city manager of Cape Town and founder member of Sekunjalo, for "grants for the publication of his memoirs";

A payment of R20 000 to former ANC MP Maxwell Moss, "in support of a community CSI project"; and

A payment of R10 000 to then ANC MP Manana Tlaka "could be a request for a donation" and "could possibly be CSI". 

Mngadi painstakingly documented all the questions that Nedbank had asked about Sekunjalo's money transfers and payments, in an apparent effort to debunk any suggestion that its decision to cut ties with Survé and his empire was driven by racism, as he claimed in Equality Court proceedings.

According to Mngadi, the scathing findings made against certain of the Sekunjalo companies by the Mpati Commission, which was tasked with investigating the Public Investment Corporation (PIC), had also been a significant source of concern to Nedbank, particularly given that it appeared that Surve and his companies did not take them seriously.

The PIC, which manages the pensions of SA civil servants, invested R4.3-billion in the Survé-linked tech group AYO in late 2017 ahead of its listing on the JSE. Soon after, the shares lost almost 90% of its value.

Former Supreme Court of Appeal (SCA) president Lex Mpati's inquiry found that the PIC's investment in Sekunjalo group companies showed a "marked disregard for PIC policy and standard operating procedures" and demonstrated "malfeasance".

The PIC was advised to conduct a forensic review of its transactions with the Sekunjalo Group and has reportedly launched legal action to recover its investment in the company.

Despite this evidence, the Western Cape Equality Court found there was merit to Survé's claims that Nedbank's decision to close Sekunjalo's accounts was driven by racism – and granted an interim interdict that blocked the bank from doing so.

Writing for a unanimous SCA bench in a ruling that was delivered on Monday, Acting Judge Raylene Keightley explained that the Equality Court's ruling was defined by clear legal error and – despite the immensely serious racism findings it made against Nedbank – devoid of any prima facie evidence of racism against the bank.

She said Survé's accusations that so-called fraud or corruption-implicated companies, like Steinhoff, EOH and Tongaat Hulett, did not have their accounts closed because they were "white-dominated businesses" were unsupported by even the most basic evidence about who owned and led those companies.

"These companies [also] did not pose the same reputational risk as [the Sekunjalo group companies]. This was because, unlike [Sekunjalo], they had all been restructured following the adverse findings against them; they had acknowledged their past wrongdoing; those implicated had been dismissed or resigned; new management was in place and other remedial actions had been undertaken," Keightley added. 

"In contrast, its interaction with [Sekunjalo] demonstrated that they had sought to downplay the seriousness of the [Mpati] Commission's adverse findings and comments directed at the Sekunjalo Group and Dr Survé."

The judge went on:

Further, a number of Nedbank’s queries regarding account transactions had not been adequately explained. Consequently, the Equality Court could not properly have found that the respondents [the Sekunjalo companies] had discharged their onus of establishing a prima facie case of unfair racial discrimination. It ought to have dismissed the application for this reason.

Sekunjalo has chosen not to explain its failure to lead any evidence about the so-called "whiteness" of the companies it had used to back up its racism claims.

Instead, it has argued that Steinhoff, EOH and Tongaat Hulett were "predominantly managed by white people and whose shareholders were also mainly white". 

"Thus, in terms of the BBB-EE Act, they are determined to be 'white'. These facts were common knowledge and were overlooked by the SCA," it said.

In her response to Sekunjalo, Mngadi had previously contended that it "would be absurd for [Nedbank] to racially discriminate in the provision of financial services in a country, the population of which is approximately 82% black and 9% white". 

"It simply couldn't operate successfully with such a business model," she said.

"Nedbank's decision to terminate its banking relationship with [Sekunjalo group] was not motivated by the fact that [they] are majority black-owned companies. Instead, it was informed by the risks which [Nedbank] were seeking to manage."