PA ‘went too far’ – Pityana
‘UNFAIR’: HE WANTS BOARD MEETING MINUTES
Absa says he’s not entitled to them as they are irrelevant, confidential.
Sipho Pityana, former lead independent director at Absa and one-time chair at AngloGold Ashanti, last month filed an application to compel Absa to furnish documents he believes will support his claim that he had been unlawfully bulleted as the preferred candidate to chair the bank.
This was after the Reserve Bank’s Prudential Authority (PA) advised the Absa board it would object to his nomination for the role without having followed due process of the law, according to Pityana.
Pityana had been the preferred candidate to take over from retiring chair Wendy Lucas-Bull, but allegations of sexual harassment while he was chair at AngloGold Ashanti made their way to the PA.
The PA is required to vet senior bank appointments such as this. Pityana has denied the allegations.
The latest court application means a second front has been opened up in the court case, as Pityana and Absa battle it out over which documents he should be entitled to receive – a process known as discovery.
Absa has handed over minutes from three board meetings, but Pityana wants access to minutes from a further nine meetings, arguing these will support his argument that he was unlawfully sidelined in the process of selecting a new chair for the bank.
‘Not entitled’ to the documents
In its court filings, Absa says Pityana is not entitled to the requested documents as they were not referred to in its court filings and are, in any event, irrelevant and/ or confidential.
Pityana says this case is essential to determining whether the regulator has strayed wide of the law by conducting a parallel process in defeating his candidacy as Absa chair, even before the bank had formally submitted his name as their recommended candidate to the PA as required under the Banks Act.
Absa in its court filings downplayed the importance of these meetings and argued it does not rely on them in its main application (defending against Pityana’s claim against the PA and Absa).
“It is possible the documents are damaging to its case and/or the [PA’s] case and it has elected not to rely on them for that reason,” argues Pityana in an affidavit.
Pityana is suing both Absa and the PA as the bank’s regulator on the grounds that the latter exceeded its powers in connection with his nomination.
Both Absa and the PA are defending the case, though Pityana is seeking no relief from the bank.
He says he was Absa’s preferred choice as chair until the PA weighed in, saying the majority of its governors would oppose his nomination.
Pityana claims in his court application this interference by the PA was unlawful and wrecked his chances of becoming Absa chair.
The documents may be damaging to its case
Candidacy ‘dealt with properly’
In an affidavit before the high court, Lucas-Bull says Absa does not intend to rely on any of the minutes Pityana is seeking as they are not relevant to the case, adding the bank took the issue of Pityana’s candidacy seriously and dealt with the matter properly.
Pityana has a different view of the matter, arguing it would be catastrophic for Absa and the PA to allegedly operate outside the law and not be held to account.
The second case is largely technical, comprising legal arguments as to who has a right to what information.
Pityana’s review application asks the court to compel Absa to produce its record of decision, including minutes and notes of board meetings where the board decision to remove him as a director was discussed.