Spartan Caselaw

Ndudane v Financial Intelligence Centre [2024] ZAWCHC 38

BANKING – Financial Intelligence Centre – Access to information

Banks terminating relationships with applicants – Applicants contending that banks treating them in discriminatory and unequal manner – Seeking information held by FIC – Banks’ risk management and compliance programmes and reports of suspicious transactions – Right to equality – Part of portfolio of evidence material to determine whether applicants unfairly discriminated against – Disclosure will help proper determination of issues in main application – FIC directed to provide applicants with the documents – Constitution, s 32(1) – Financial Intelligence Centre Act 38 of 2001, ss 40 and 41.

Facts: Investec and FNB terminated their relationship with Mr Ndudane and TCQ Fisheries due to reputational and business risk. Mr George’s relationship with Absa were exited by the bank, which alleged that his profile did not fit within their internal policy and commitment to complying with all legal and regulatory obligations applicable to anti-bribery laws and regulation both locally and internationally, and he did not fit their risk appetite. FNB terminated its relationship with Mr Moreira and Mota Motor Company. The termination letter also referred to associated reputational and business risk. Democracy in Action was a non-profit company established to advance, support and defend democratic principles and values. It had an account with FNB to receive donations, which were its primary source of income. FNB issued a letter to it indicating that FNB had elected to exercise its contractual right to terminate their banking relationship.

Application: An opposed interlocutory application for access to information in which the applicants sought orders that the Financial Intelligence Centre (FIC) be directed to provide information which was held by the FIC as set out in terms of section 40(1)(e) and section 41(d) and (e) of the Financial Intelligence Centre Act 38 of 2001 (FICA). According to the applicants the information sought would show that while the applicant’s bank accounts were terminated purportedly on account of seeking to comply with the anti-money laundering laws as headlined by FICA, the respondent banking institutions had treated the applicants in a discriminatory and unequal manner when compared to other individuals and organisations which have had negative publicity during the determination of their risk appetite. See para [2] for the information sought, including the banks’ risk management and compliance programmes and reports of suspicious transactions in respect of Sekunjalo Group, EOH Holdings, KPMG Services, Steinhoff and Tongaat Hullet.

Discussion: FIC disputed that this application was brought in terms of section 21(5) of Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) as the applicants alleged. The applicants’ Equality Court complaint included that the unilateral termination of bank accounts violated constitutional rights enshrined in the Bill of Rights. Without access to financial services such as bank accounts, numerous socio-economic rights were curtailed and could not be meaningfully enjoyed or exercised. The case was that no provisions in the anti-money laundering laws and regulations required banks to unilaterally terminate accounts of customers who fulfilled the customer due diligence or Know Your Customer requirement. The banks were only required to monitor and report suspicious, unusual and transactions and those above the regulated threshold. The banks were thus overreaching and ultra vires in trying to comply with FICA and related legislation by assuming the role of a law enforcement agency and a court of law entitling them to investigate, judge and punish their customers through unbanking them based on innuendo and suspicion of involvement in criminal activity.

Findings: The constitutionally entrenched right to equality will be emaciated and hollow if constitutional institutions, upon request, may not supply information on any measures relating to the achievement of equality including where appropriate, compliance with legislation, codes of practice and programmes within their jurisdiction, in instances where such access did not threaten State security or destabilise, in this instance, the nation’s financial system. The applicants have established their right to their information sought. Fairness and equity, and our constitutional values of openness and transparency, favour that the applicants being granted access to the reports which the respondent banks provided to the FIC as regards reputational and business risk as well as anti-bribery legal and regulatory frameworks. This is part of the portfolio of evidence that is material to determine whether the applicants were unfairly discriminated against, as they allege. The disclosure of this confidential information held by the FIC will help in the proper determination of the issues in the main application.

Order: The application is granted. The FIC is directed to provide the applicants with all the documents within 20 days of the date of this order. The FIC to pay the costs, including the costs of two counsel where so employed.

THULARE J

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Intercape Ferreira Mainliner v Minister of Police [2024] 1013-23 (ECM)

CRIMINAL – Police – Duty to investigate

Intercape bus service subjected to widespread intimidation and violence at hands of taxi industry – Campaign fits mould of pattern of racketeering activity and organised crime – Intercape’s engagement with police respondents proved fruitless – Failure by police commissioners to refer investigations to Directorate for Priority Crime Investigation – Police not meeting their constitutional and statutory obligations and Intercape entitled to declaratory relief – South African Police Service Act 68 of 1995, s 16(4)(b) – Constitution, s 205(3).

Facts: Intercape Ferreira Mainliner describes itself as one of the country’s foremost long-distance bus operators. Intercape contends that for several years it has been subjected to widespread, ongoing and well-documented acts of intimidation and violence at the hands of the taxi industry. This has included its buses coming under gunfire and attacks by rock throwing. The acts of violence and intimidation experienced by Intercape and its passengers are not random. The ongoing criminality, so Intercape submits, is part of an organised scheme by taxi operators to drive long­distance bus operators out of certain parts of South Africa, thereby enabling taxi operators to monopolise transport routes in those areas.

Application: At the time when this application was launched Intercape had lodged 165 criminal complaints with the police in respect of acts of violence and intimidation allegedly perpetrated against its drivers, passengers and buses. Despite this, not a single person is under arrest for these offences and no prosecutions are imminent or pending. Intercape says it was constrained to bring this application out of desperation after a year of engagement with the police respondents had proved fruitless.

Discussion: Despite Intercape’s assistance, by providing the police with extensive concrete evidence of acts of intimidation and violence, Intercape’s engagements with the police bore no fruit. Of particular concern is the failure by the police commissioners to refer any investigations to the Directorate for Priority Crime Investigation (DPCI) as matters of organised crime which requires investigation at a national level, utilising the specialised skills of that body. In so doing the police commissioners have acted in breach of their obligations in terms of section 16(4)(b) of the South African Police Service Act 68 of 1995. Intercape contends that the criminal conduct underlying the violence and intimidation against its operations constitute organised crime and falls within the definition of a “pattern of racketeering activities” as defined in section 1 of the Prevention of Organised Crime Act 121 of 1998 (POCA).

Findings: It is uncontested that Intercape is the subject of an ongoing campaign of violence and intimidation committed against its passengers, bus drivers and buses. It is a single campaign which targets Intercape countrywide. The campaign fits the mould of a pattern of racketeering activity as defined in POCA and organised crime as contemplated in section 16 of the SAPS Act. The existence of the campaign is acknowledged by the police and the prosecuting authorities and this acknowledgement triggers, inter alia, the provisions of section 16(4)(b) of the SAPS Act. On the facts advanced by Intercape and taking into account the contentions of the police respondents, the court is satisfied that the police are not meeting their constitutional and statutory obligations and that therefore Intercape has established a case for declaratory relief.

Order: It is declared, in relation to the 165 instances of intimidation and violence perpetrated against Intercape’s buses, drivers and passengers and the cases Intercape has opened, that the police failed to investigate and prevent the crimes as required in terms of section 205(3) of the Constitution; that the provincial commissioners have failed to report the crimes to the National Head and DPCI as instances of organised crime, crime which requires national prevention or investigation, and/or crime which requires specialised skills in the prevention and investigation thereof, as required in terms of section 16(4)(b) of the SAPS Act; and the DPCI has failed to investigate and prevent the crimes as instances of national priority offences as required in terms of section 17D(1)(a) of the SAPS Act. (See the directions to the police at para [79].)

RONAASEN AJ

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Pieterse v Food Lover’s Market [2024] ZAFSHC 34

PERSONAL INJURY – Slip and trip – Uneven walkway – Alleging uneven and unsafe paving on sidewalk

Sustained injuries – Negligence and legal duty of care – Falling due to raised paving stone does not equate to finding of danger or being unsafe – Disclaimer notice present – Condition of paving fair and reasonable – Implemented system in dealing with repairs and maintenance – Failed to show existence of dangerous situation – Plaintiff was negligent on her own version.

Facts: The plaintiff attended at Food Lover’s Market when she fell on the sidewalk or passageway leading to the entrance of the store. She sustained bodily injuries and suffered damages as a result of the incident. The plaintiff alleges that she fell as a result of uneven and unsafe paving on the sidewalk or passageway directly in front of and leading to the business premises. The plaintiff alleges that the defendants had a legal duty to ensure that the exterior sidewalks and entrances leading to and providing access to the business and the premises were properly maintained and were in a safe condition.

Claim: The plaintiff pleaded that the incident was caused due to the negligence of the defendants. The plaintiff seeks an award for damages as a result of the incident.

Discussion: The plaintiff contends that the defendants have a common law duty of care towards patrons and the public present and commuting on the premises. The ultimate enquiry is whether the defendants can reasonably be expected to have acted in the circumstances of the case. It is to be expected that the paving stones outside a shopping mall and on the walkway from the parking area to the entrance of a shop will not always be in perfect and pristine condition. A reasonable sense of proportion is called for and the public must be taken to realize that and to take care of their own safety when using the roads and pavements. If the plaintiff had kept a proper lookout, she would have noticed that the paving is uneven.

Findings: The defendants had at all relevant times implemented a system for dealing with repairs and maintenance of the infrastructure which included the paving and walkways. No reports apart from the complaint by the plaintiff have been received pertaining to the condition of the paving. Applying the test for negligence in Kruger v Coetzee 1966 (2) SA 428 (A) the plaintiff has not shown the existence of a dangerous situation in respect of which the defendants could have foreseen harm and would require them to take steps to prevent such harm. The plaintiff has not satisfied the elements of the delictual action in that she did not satisfy the requirement of wrongfulness, she did not prove the cause and location of her fall, and she did not satisfy the requirement of negligence of either of the defendants. The plaintiff was negligent in her own version.

Order: The plaintiff’s claim is dismissed with costs.

VAN RHYN J

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ABOUT SPARTAN CASE LAW

Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes.​ During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law

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