‘Denial of banking an indirect violation of human rights’
DENYING a person the right to a banking system might be an indirect violation of basic human rights, such as financial and economic participation, according to former commissioner of the South African Human Rights Commission, Professor Karthy Govender.
Although there was nothing in the Constitution that said people had the right to a bank account, denying them access to such financial facilities might impact other basic rights, which were contained in the country's Bill of Rights.
Independent Media sought Govender's views on the matter, following decisions by the country's major banks to “unbank” individuals and companies who they believed carried a reputational risk to their own banking operations.
Govender is a retired University of KwaZulu-Natal (UKZN) constitutional studies professor.
“While it is not a direct right, other rights may be affected if somebody is arbitrarily refused a bank account, because if you don't have a bank account it is very difficult to conduct a business, etc,” Govender said.
Sekunjalo Investment Holdings (SIH), its chairperson, Dr Iqbal Survé, and related entities are among the latest victims of the banks' arbitrary decisions, which some say lack valid reason.
The banks have largely based their actions on negative reports carried by media organisations that are competitors of Sekunjalo's Independent Media.
The unbanking of Sekunjalo and its related companies has placed the future of thousands of employees and their dependants in jeopardy.
It has also highlighted the extraordinary control and domnination private banks have over ordinary citizens and companies in South Africa.
While they are privately owned, banks have a right of care to provide an essential public service, and, as noted in the United Nations Universal Declaration of Human Rights, “everyone has the right to life, liberty and the security of person”.
Survé, Sekunjalo and related entities also approached the Equality
Court and the Competition Tribunal to seek an interdict until the matter of the closure of their bank accounts is ventilated in court.
The Equality Court has reserved its judgment, while the Competition Tribunal is yet to pronounce its decision.
Govender, who has worked with the Constitution for years, said the document said nothing about entitlement to a bank account.
“It may impact on other rights. For example, you have a right not to be discriminated against based on race, gender, sexual orientation etc. Subject to proper regulation by the state, you also have a right to engage in economic activities because you have to sustain yourself,” he said.
Govender said the right to banking facilities might have been left out of the Constitution because “you cannot put everything in”. But such rights are left to the court to interpret.
“Let us assume I get denied the right to a bank account because I belong to a particular religious organisation, and that may amount to either a violation of freedom of religion or a right not to be subjected to unfair discrimination,” he said.
He said if an account holder did not handle his or her account properly and became unbankable and therefore there was a rational basis for the denial of such facilities, “then in those instances, there would not be a violation”.
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