Business Day

Nedbank hints at litigation linked to state capture

- Garth Theunissen Investment Correspond­ent

Nedbank has hinted it may get drawn into litigation and possible regulatory action over transactio­ns it was involved in that were found to be potentiall­y corrupt at the Zondo commission of inquiry into state capture.

Though the commission made no findings against Nedbank, it recommende­d further investigat­ion of its involvemen­t in certain transactio­ns — in which the Gupta-backed firm Regiments Capital acted as a financial adviser to Airports Company SA (Acsa).

The commission’s first instalment of a three-part report on state capture mentioned Nedbank more than 50 times, and in at least one instance described its involvemen­t in certain deals as “disturbing ”.

Nedbank also featured in an amaBhungan­e report in February 2021, which alleged it had formed a “pact” with Regiments in which the Gupta-linked company brokered loans with stateowned enterprise­s (SOEs), including Transnet, in exchange for tens of millions of rand in fees. This occurred while it saddled the public entities with hundreds of millions of rand in additional costs.

At the time, Nedbank denied acting unlawfully.

“Nedbank continues to cooperate with various further inquiries and investigat­ions that are under way in respect of these transactio­ns — these engagement­s may result in Nedbank entering into negotiatio­ns or, failing which, becoming involved in litigation and associated regulatory proceeding­s, with various parties,” the bank said in its integrated report for the year to end-December 2022, which was released on April 20. “Given that there is no evidence of any wrongdoing, collusion, or corruption on the part of Nedbank, we will strongly defend any litigation against us.”

Nedbank had a formal business relationsh­ip with Regiments dating back to 2009 in which the Gupta-linked company acted as a black-owned advisory firm that earned fees for transactio­ns it facilitate­d for the bank. The deal Regiments struck with Acsa more than a decade ago involved the stateowned airport operator buying R3.5bn in unnecessar­y interest rate swaps backed by Nedbank so that it could extract tens of millions of rand in extra fees. Interest rate swaps are derivative contracts that switch one stream of future interest rate payments for another.

The Zondo commission recommende­d in January 2022 that the Asset Forfeiture Unit of the National Prosecutin­g Authority investigat­e the possibilit­y of recovering money from Nedbank over the interest rate swap contracts. While the commission acknowledg­ed it did not have time to hear Nedbank’s version of events at the time, it said the relationsh­ip between two of the bank’s dealers — Mario Visnenza and Moss Brickman — and Regiments director Eric Wood, appeared to have contravene­d the Prevention and Combating of Corrupt Activities Act.

Business Day asked Nedbank on Friday for clarity on the vague reference to potential litigation in its latest integrated report, but was told that CEO Mike Brown and other senior executives were not reachable as they were away for a corporate breakaway at a game lodge for the weekend.

While little further detail on potential litigation and regulatory scrutiny was contained in the bank’s integrated report, it did say that its forward-looking estimates could be affected by “current and future litigation”.

However, on Sunday afternoon, Brown responded to say its board had previously requested and approved comprehens­ive legal reviews of the implicated transactio­ns, which found no evidence of any Nedbank staff involvemen­t in dishonesty, corruption, collusion or unlawful conduct. He also played down the potential litigation, saying the bank was satisfied that its internal governance procedures were followed.

“It has subsequent­ly emerged

that there was wrongdoing by other parties. All we are referring to here are these subsequent investigat­ions and the discussion­s we have been having for some time in relation to these transactio­ns with related parties,” Brown said.

“The contents of these discussion­s are confidenti­al by mutual agreement. As a matter of transparen­cy, Nedbank was merely advising shareholde­rs of the possibilit­y of litigation in the event that these discussion­s do not bear fruit.”

Nedbank ’ s latest integrated report also disclosed that Deloitte would cease providing it with audit services at the conclusion of its services for the financial year ending December 31 as per the mandatory audit firm rotation rules of the Independen­t Regulatory Board for Auditors. That will see KPMG join EY, which was appointed by Nedbank in 2019, subject to shareholde­r approval at the bank’s annual general meeting. /

NEDBANK WAS MERELY ADVISING SHAREHOLDE­RS OF THE POSSIBILIT­Y OF LITIGATION ... [IN CASE] ... DISCUSSION­S DO NOT BEAR FRUIT

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Mike Brown
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Raymond Zondo

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