Daily Maverick

Behind Survé’s conspiracy theories

In his attempt to regain access to the banking system, the media owner has cast his net of allegation­s ever wider. But, plot or not, the de facto boycott threatenin­g the Sekunjalo Group raises questions about the power of the banks

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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...

Iqbal Survé professes to believe the following: a conspiracy to “unbank” and “strangle” his Sekunjalo group of companies is being driven by the Public Investment Corporatio­n (PIC) with the active connivance of the SA Reserve Bank (SARB), the Prudential Authority (PA), South Africa’s banking regulator – as well as the JSE.

And by the hostile, white-owned media such as Daily Maverick and Media24, which are dead set on sinking Survé’s competing Independen­t Media.

And, of course, by amaBhungan­e.

The banks are just the weapons in a wider plot to destroy him and everything he has built, because he is black – and because his media provide an “alternativ­e” to the rest of us, who are clearly embedded with the Ramaphosa administra­tion. He, technicall­y the largest publisher of newspapers in the country, is the underdog.

This is the shaky foundation of Survé’s applicatio­n to the Competitio­n Tribunal, which seeks an interim order to halt and reverse the nearly universal banking boycott against all his companies. 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 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: 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.

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 and maybe safeguard the businesses and their employees.

Survé has repeated ad nauseum the banks’ own slightly perfunctor­y assurances to him that they are not accusing him of having done anything illegal. But it is easy to understand the banks’ point of view. 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 Client and anti-money-laundering assessment and reporting obligation­s.

The position taken by the banks is that the banking relationsh­ip is a contractua­l one: they are entitled to terminate a relationsh­ip in accordance with the contractua­l terms – usually one month’s notice – and they are not required to provide an explanatio­n, though, in Survé’s case, they have done so at length.

Survé has tried to suggest the banks 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 independen­tly came to the same conclusion about him as a client.

A case to answer?

Survé has argued persuasive­ly that no business can operate without access to the banking system – and that 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.

In an affidavit filed at the tribunal, the commission 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 SA law.

But is it a competitio­n case?

In framing his battle against the 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 a large paying customer.

However devastatin­g the cumulative actions of the banks may be, that does not mean they constitute a transgress­ion in competitio­n law. The banks argue that their independen­t addressing of reputation­al risks all lead to the same outcome because they all operate in the same regulatory environmen­t.

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

The question why they would do this looms large over the technical arguments and in the digs exchanged in the 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.”

This has not stopped him from theorising about why the banks have allegedly launched a coordinate­d campaign to destroy Sekunjalo.

Conspiracy 1: the PIC

The PIC in many ways summoned Survé’s conglomera­te into being with repeated investment­s 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, but 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, Survé appears convinced it 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,” he said in his affidavit.

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 went further anyway: “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.”

Ayo is, to a large extent, the reason Survé is in his current situation after journalist­s and the Mpati Commission 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 has produced no evidence to back up his allegation­s.

Conspiracy 2: the regulator

According to Survé’s affidavits, even the 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 court papers, including those recently filed at the Equality Court.

In his Equality Court affidavit, he claims that “highly placed sources within Absa Bank 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 a response to amaBhungan­e questions, the regulator said: “The PA denies the allegation, which is without any basis or evidence.”

Citing a 16 November 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.”

Conspiracy 3: racist banks

Anti-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”.

The #racistbank­smustfall campaign that has sprung up appears heavily invested in Sekunjalo’s fate. 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 mortgages and personal credit facilities totalling well over R100-million are detailed in court papers and his companies’ multimilli­on facilities with various banks are detailed in their financial statements.

Still, the fact that Sekunjalo is black 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,” Survé says in his papers.

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 banks’ position is that all those companies fired their executives and underwent large investigat­ions to clean up the rot.

Conspiracy 4: #Stratcom

Survé makes much of the fact that many of the banks relied on media reports when pleading reputation­al damage, including amaBhungan­e reports. This dovetails with Survé’s long war of words with his perceived mortal enemies: us and rival media in general.

Full disclosure: Survé is 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 wrong.

Survé has not demonstrat­ed any significan­t error in our coverage and it has also long been Sekunjalo’s policy to ignore our queries.

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.

Gupta precedent

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.

Banking the disreputab­le can invite censure from internatio­nal correspond­ent banks as well as local and internatio­nal authoritie­s, which is part of the case the banks are making. The competitio­n authoritie­s are being asked to possibly force banks to transgress regulation­s in what is rightly the most regulated industry of all.

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 not to 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 could be more complicate­d than that. Commission legal counsel Luke Rennie told the tribunal 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 seems like a point worth taking up. If only Survé could stick to arguments like these.

 ?? Original photo: Lerato Maduna/Foto24/Gallo Images; Bank etching: iStock ?? Iqbal Survé, CEO of the Sekunjalo Group, has framed his battle against the banks who are boycotting his companies as a competitio­n complaint.
Original photo: Lerato Maduna/Foto24/Gallo Images; Bank etching: iStock Iqbal Survé, CEO of the Sekunjalo Group, has framed his battle against the banks who are boycotting his companies as a competitio­n complaint.
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 ?? ?? By Dewald van Rensburg
By Dewald van Rensburg

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