IT is settled in law that interim interdicts granted by the High Court are not appealable, particularly because of the nature and purpose they serve. In the main, interim interdicts are what we may understand as blinkers of justice, with their focus solely on the administration of justice and less on the merits and demerits of a case.
These are the words of Sipho Mtsweni, an attorney and associate at Lawtons Africa, in a report published by the South African law firm in May 2022.
This brings into focus the matter between Sekunjalo and Nedbank was granted leave to appeal an interim interdict and eventually received a ruling in their favour from the Supreme Court of Appeal (SCA).
How did this matter even make it the SCA based on the nature of the interim interdict? We can't normally come and appeal an interdict; it’s an interdict, not a case, but somehow an exception was made here for Nedbank.
In May 2018, UDM leader General Bantu Holomisa ran several defamatory letters on his website, which led to some of the affected entities approaching the High Court for an interdict to restrain the UDM and Holomisa from making or repeating any defamatory allegations pending the institution of an action for damages for defamation and injuria.
Despite Holomisa’s arguments, the High Court found in favour of the complainants, leading to the general applying for leave to appeal the interim interdict.
When the matter came before the SCA, the application was struck off the roll on the basis that the interdict was interim, and the SCA therefore found that it was not appealable.
Sekunjalo was granted an interim interdict against Nedbank in the Equality Court pending the outcome of their case. Nedbank appealed at the SCA under a full bench of white judges and was successful.
Who has ever heard of an equality matter being heard by a bench of only white judges? Worse still, what about the SCA’s precedent ruling that interim interdicts are not appealable?
Mtsweni further states: “However, while the non-appealability of interim interdicts granted by the High Court is settled law, there is an exception to the rule. Interim interdicts can be appealed in exceptional circumstances and, importantly, if the interests of justice permit leave to appeal and demand that interim interdicts be appealable.”
In Sekunjalo’s case, the interim interdict was in the interest of justice, but as we have said numerous times, the banks are not interested in justice but in being a law unto themselves. They are not interested in the matter being heard in court but just to shut down clients’ accounts without having to submit to their regulators or even the law.
Another anomaly in the Sekunjalo matter is that advocates were of the view that this appeal would not be heard until March this year. So how did a matter get heard so quickly?
One cannot help but suspect that there may be a higher power at play here. I have nothing against white judges or even white people, for that matter, but what are the odds of having only white judges available to hear an equality matter against a black-owned company? And the matter was partly about racial discrimination.
A quick check on the SCA’s website shows that a majority of SCA judges are black.
Something even more peculiar is that the case was heard early, and secondly, the judgment came out when the court was recessed. The court closed at the end of November. The only judgment in the SCA is the Sekunjalo judgment that came out while it was in recess.
Why the rush?
Could they have released this judgment during the holiday season because people were probably not expected to be paying attention?
Another matter is that they introduced a new argument, pushing Sekunjalo to prove that Sekunjalo is indeed black-owned and the other companies are white-owned. This issue would not ordinarily be raised at an interim interdict appeal.
In its ruling, the SCA stated that the Constitutional Court found that “[o]ver and above the common law test, it is well established that an interim order may be appealed against if the interests of justice so dictate”. It found further that, in deciding whether an order is appealable, this Court does not exercise its discretion but rather makes a finding of law.
The nature of the equality court complaint against the banks is that the decision to close the accounts of the Sekunjalo Group and related entities constituted conduct amounting to unfair discrimination on the ground of race.
To support their claim, the Sekunjalo Group identified Steinhoff, EOH, and Tongaat Hulett as entities that had not had their bank accounts closed despite them having been found guilty of fraud and other offences.
“By way of contrast, no actual findings of financial misconduct had been made against the Sekunjalo Group, and yet entities within that group had either had their relationship with Nedbank terminated or threatened with termination,” the SCA said.
The Sekunjalo Group asserted that these examples of what they labelled as “white-dominated businesses” not being punished by Nedbank in the same manner as the respondents was absurd and that it was “difficult not to infer that there is racial discrimination at play here”.
The court required Sekunjalo to show that:
(a) the other impugned companies, which had not had their accounts closed, were “white companies”, whereas the respondents, which had faced closure, were “black companies”,
(b) these two groups were similarly situated in all other respects apart from race; and
(c) the reason for this differential treatment was the race of the companies.
“Without this, a plausible inference could not be drawn that it was the victim of unfair racial discrimination by Nedbank,” the SCA said.
And it is for this reason that the appeal was successful.