THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 160/23

In the matter between:
NEDBANK LIMITED                                                              FIRST APPELLANT
NEDGROUP PRIVATE WEALTH
STOCKBROKERS (PTY) LTD                                       SECOND APPELLANT
and
MOHAMMED IQBAL SURVÉ                                                FIRST RESPONDENT
SEKUNJALO INVESTMENT
HOLDINGS (PTY) LTD                                                     SECOND RESPONDENT

AFRICAN EQUITY EMPOWERMENT
INVESTMENT LIMITED

THIRD RESPONDENT

PREMIER FISHING
AND BRANDS LIMITED

FOURTH RESPONDENT

PREMIER FISHING SA (PTY) LTD

FIFTH RESPONDENT

PREMFRESH SEAFOODS (PTY) LTD
SIXTH RESPONDENT

MARINE GROWERS (PTY) LTD

SEVENTH RESPONDENT

TALHADO FISHING

ENTERPRISES (PTY) LTD

EIGHTH RESPONDENT

RUPESTRIS INVESTMENTS (PTY) LTD
NINTH RESPONDENT

DAZZALLE TRADERS (PTY) LTD

TENTH RESPONDENT

MANICWA FISHING (PTY) LTD
ELEVENTH RESPONDENT

MB FISHING VENTURES (PTY) LTD         TWELFTH RESPONDENT

ROBBERG SEA FREEZE (PTY) LTD
THIRTEENTH RESPONDENT

3 LAWS CAPITAL
SOUTH AFRICA (PTY) LTD

FOURTEENTH RESPONDENT

AFRICAN NEWS AGENCY (PTY) LTD       FIFTEENTH RESPONDENT

BUSINESS VENTURE INVESTMENTS
NO. 1126 (RF) (PTY) LTD

SIXTEENTH RESPONDENT

CAPE SUNSET VILLAS (PTY) LTD       SEVENTEENTH RESPONDENT

GLOBAL COMMAND & CONTROL
TECHNOLOGIES (PTY) LTD

EIGHTEENTH RESPONDENT

HAIFAMS INVESTMENTS (PTY) LTD   NINETEENTH RESPONDENT

JABSTER
TECHNOLOGIES (PTY) LTD

TWENTIETH RESPONDENT

KATHEA
COMMUNICATIONS (PTY) LTD          TWENTY FIRST RESPONDENT

LINACRE
INVESTMENTS (PTY) LTD
TWENTY SECOND RESPONDENT

AFRICA ONLINE
RETAIL (PTY) LTD

TWENTY THIRD RESPONDENT

MADJADJI AFRICAN EMPOWERMENT
CONSORTIUM (PTY) LTD
TWENTY FOURTH RESPONDENT

SAGARMATHA GROUP
HOLDINGS (PTY) LTD

TWENTY FIFTH RESPONDENT

SAGARMARTHA
TECHNOLOGIES LIMITED                 TWENTY SIXTH RESPONDENT

INDEPENDENT MEDIA
CONSORTIUM (PTY) LTD
TWENTY SEVENTH RESPONDENT

SEKUNJALO
CAPITAL (PTY) LTD

TWENTY EIGHTH RESPONDENT

SEKUNJALO
PROPERTIES (PTY) LTD

TWENTY NINTH RESPONDENT

SILO CAPE WATERFRONT
PROPERY INVESTMENTS (PTY) LTD       THIRTIETH RESPONDENT

SIYOLO ENERGY AND AFRICAN
RESOURCES (PTY) LTD

THIRTY FIRST RESPONDENT

THE TRUSTEES OF THE SOUTH AFRICAN
INSTITUTE FOR THE ADVANCEMENT OF SOCIAL
ENTREPRENEURS TRUST
THIRTY SECOND RESPONDENT

SOUTH AFRICAN
PRESS ASSOCIATION (PTY) LTD         THIRTY THIRD RESPONDENT

SURVÉ PHILANTHROPIES NPC        THIRTY FOURTH RESPONDENT

THE TRUSTEES OF
THE HARAAS TRUST

THIRTY FIFTH RESPONDENT

THE TRUSTEES OF THE
IQBAL SURVÉ BURSARY TRUST
THIRTY SIXTH RESPONDENT

THE TRUSTEES OF THE SAVNASI
VILLAGE TRUST

THIRTY SEVENTH RESPONDENT

THE TRUSTEES OF THE
IQBAL SURVÉ FAMILY TRUST          THIRTY EIGHTH RESPONDENT

THE TRUSTEES OF THE
SEKUNJALO DEVELOPMENT
FOUNDATION TRUST

THIRTY NINTH RESPONDENT

THE TRUSTEES OF THE SOCIAL
ENTREPRENEURSHIP FOUNDATION
TRUST

FORTIETH RESPONDENT

THE TRUSTEES OF THE
SURVÉ FAMILY FOUNDATION TRUST     FORTY FIRST RESPONDENT

KALULA COMMUNICATIONS
(PTY) LTD

FORTY SECOND RESPONDENT

THE TRUSTEES OF THE SOUTH ATLANTIC
ARTS AND CULTURE TRUST

FORTY THIRD RESPONDENT

INDEPENDENT NEWSPAPERS

FORTY FOURTH RESPONDENT

Neutral citation: Nedbank Limited and Another v Survé and Others (Case no
160/2023) [2023] ZASCA 178 (18 December 2023)
Coram:
GORVEN, MEYER and WEINER JJA and BINNS-WARD and
KEIGHTLEY AJJA
Heard:
14 November 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email publication on the Supreme Court of Appeal
website and by release to SAFLII. The date and time for hand-down is deemed to be
11h00 on 18 December 2023.
Summary: Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000 – application for interim interdict in Equality Court – failure to establish
prima facie case – appealability of interim interdict.

__________________________________________________________________
ORDER
______________________________________________________________________________
On appeal from: Western Cape Division of the High Court, Cape Town (Dolamo J,
sitting as the Equality Court):
1 The appeal is upheld with costs, including the costs of two counsel where so
employed.
2 The order of the Equality Court is set aside and replaced with the following order:
‘The application is dismissed with costs, including the costs of two counsel where
so employed.’
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Keightley AJA (Gorven, Meyer and Weiner JJA and Binns-Ward AJA
concurring)
[1] This appeal has its origins in proceedings instituted in the Western Cape
Division of the High Court, Cape Town sitting as the Equality Court (the equality
court), by the first respondent, Dr Survé, and the remaining respondents (the equality
court proceedings). The latter are entities within what may broadly be termed the
Sekunjalo Group of Companies (the Sekunjalo Group). Dr Survé describes himself
as the founder of the Sekunjalo Group. The appellants, Nedbank Limited and
Nedgroup Private Wealth Stockbrokers (Pty) Ltd (Nedbank), are two of several
banks cited as respondents in the equality court proceedings. The nature of the
equality court complaint against the banks is that the decision to close the accounts

of Dr Survé and the other entities in the Sekunjalo Group constitutes conduct
amounting to unfair discrimination on the ground of race.

[2] The equality court complaint was lodged against the backdrop of several
banks, including Nedbank, placing the accounts of the respondents on review. On
15 November 2021, Nedbank dispatched termination letters notifying the
respondents that their accounts would be closed (the termination letters). In February
2022, the equality court complaint was filed against Nedbank. On 21 February 2022,
the respondents instituted an urgent application (the application) in the equality court
for an interim interdict in terms of s 21(5) of the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). It is this
application that is the subject matter of the appeal.

[3] In brief, the respondents sought to prohibit Nedbank from closing the bank
accounts of those respondents that had received termination letters, but whose
accounts had not yet been closed. In respect of those respondents whose accounts
had already been closed, an order was sought directing Nedbank to re-open them
with immediate effect, coupled with a prohibition against subsequent closure. Both
categories of relief were to be effective pending the final determination of the
equality court proceedings.

[4] The equality court (per Dolamo J) granted an interdict in the terms sought and
ordered Nedbank to pay the costs of the application. Leave to appeal was dismissed
with costs. The appeal is with leave of this Court.

[5] The event that triggered Nedbank’s decision to review its banker-customer
relationship with the respondents, was the Mpati Commission of Inquiry (the

Commission). The Commission was appointed in October 2018 to investigate, report
and make findings and recommendations on allegations of impropriety concerning
the Public Investment Corporation (the PIC). One aspect of the Commission’s scope
of inquiry was the relationship between the PIC and certain companies within the
Sekunjalo Group, notably, but not solely, Ayo Technology Solutions (Pty) Ltd
(Ayo), and certain transactions that had been concluded between them.

[6] The Commission’s report was released to the public in March 2020. It
contained several findings which raised concern for Nedbank. The Commission
found that Ayo’s shares were grossly over-valued at its listing date, when the PIC
subscribed for shares at a price previously agreed between the PIC and Ayo. Soon
thereafter, the value of the shares plummeted by 87%. This, concluded the
Commission, demonstrated ‘the malfeasance of the Sekunjalo Group’. It observed
that the PIC’s interactions with, and investments in, the Sekunjalo Group were
questionable from the outset and that investment proposals had emanated from direct
discussions between Dr Survé and Dr Matjila, the then Chief Executive Officer of
the PIC. This close relationship created top-down pressure on the PIC teams
involved to recommend approval for the investments.

[7] The inquiry and the Commission’s report also generated significant adverse
media attention for Dr Survé and the Sekunjalo Group. Concerned about the possible
reputational risk its continued relationship with the respondents would generate,
Nedbank embarked on a process of reviewing that relationship. There were extensive
engagements between the parties over several months in 2021 and in January 2022.
Nedbank received representations from Dr Survé, as well as receiving responses to
queries directed at other representatives of the Sekunjalo Group. These included
queries about the flow of funds between different accounts held by the respondents

with Nedbank. Ultimately, Nedbank decided to terminate its banking relationship
with the respondents.

[8] It is common cause that all the contracts governing the banking relationship
permitted Nedbank to terminate the contracts on reasonable notice. In the
termination letters, Nedbank gave the various respondents 120 days’ notice of the
closure of their accounts. Notwithstanding that Nedbank was under no obligation to
provide reasons for its decision,1 the letters recorded that the reason for the closures
was that, in Nedbank’s view, taking into account a number of factors, a continued
relationship with the respondents was likely to pose significant reputational and
association risks for Nedbank.

[9] The termination letters listed the factors. Common to most of the respondents,
these were identified as: the respondents’ direct or indirect association with Dr Survé
and the Sekunjalo Group; the serious nature of the allegations levelled against
Dr Survé and the Sekunjalo Group; the litigation in which some companies in the
Sekunjalo Group had been involved; the adverse inferences and statements made in
the Commission’s report; and the Sekunjalo Group’s failure to appreciate that the
report implicated certain entities in the group in wrongdoing. In respect of some
respondents, the termination letters also cited, as factors, Nedbank’s detailed
transactional analysis of certain bank accounts and the unsatisfactory responses
Nedbank had received to its associated queries.

1 Bredenkamp v Standard Bank of SA Ltd [2010] ZASCA 75; 2010 (4) SA 468 (SCA) para 23; [2010] 4 All SA 113
(SCA).

[10] Following the dispatch of the termination letters, there was further
engagement between the parties. The Sekunjalo Group appointed Mr Heath SC to
conduct an independent review of the Commission’s report. He wrote to Nedbank
on 30 November 2021 advising them of this fact. He also quoted from his letter of
appointment from Dr Survé, in which the latter had indicated that the Sekunjalo
Group intended to make the report available to, among others, their bankers.
However, on 5 January 2022, he wrote again indicating that he had prepared a
preliminary report but that the Sekunjalo Group had claimed privilege over it.
According to Nedbank, the respondents were prepared to share the report with the
bank if it withdrew its termination notices. This was not acceptable to Nedbank and
the notices remained in effect.

[11] With the imminent closure of some affected bank accounts, the respondents
turned to the courts. They first approached the high court for an urgent interdict
against Nedbank to prohibit the closure on the basis of unfair discrimination on the
ground of race. On 14 February 2022 the high court ruled that it did not have
jurisdiction to consider the application as the matter fell within the exclusive
jurisdiction of the equality court. A week later the respondents instituted the
application now on appeal.

[12] Two main issues arose for consideration in the appeal. First, the issue of
whether the order of the equality court is appealable. Second, the question of whether
the respondents established a prima facie case of racial discrimination. Nedbank
contended that they did not, that the equality court erred in concluding otherwise,
and that the order was appealable. The respondents’ submission was that, even if the
order was appealable (which they dispute), it was correctly granted.

[13] The question of appealability arose because the equality court’s order was
expressly stated to be an interim interdict under s 21(5) of the Equality Act.2
Nedbank submitted that despite the apparent interim nature of the order, its reach
rendered the order final in effect. This was so because the order prohibits Nedbank
from closing the bank accounts of the respondents for any reason, even if that reason
has nothing to do with unfair discrimination. If a respondent, for example, breached
the terms of the banker-customer contract, the equality court order prohibits
Nedbank from exercising its contractual right to terminate the relationship. Due to
the equality court’s limited jurisdiction, which is restricted to unfair discrimination
related matters, it would never reconsider its order insofar as it dealt with the
prohibition against non-discrimination related terminations. Nedbank submitted that
to this extent the equality court order was final and appealable.

[14] The respondents disputed Nedbank’s interpretation of the equality court order.
They contended that, properly interpreted, the order is not as broad as Nedbank
suggested, and that it simply does not prohibit non-discrimination based
terminations. They based this contention on the order requiring Nedbank to re-open
any accounts of the respondents which it had closed. The balance of that order was
that the re-opening was directed to ‘retain the terms and conditions on which these
accounts were operating prior to their closure’. While that is true of that paragraph
of the order, it clearly does not apply to the prohibitory interdicts of the first two
paragraphs of the order. Those are not made subject to the accounts being governed
by the prior terms and conditions. The respondents relied on Dolamo J’s statement,
in his judgment in the application for leave to appeal, that the order was not intended

2 Section 21(5) states that:
‘The court has all ancillary powers necessary or reasonably incidental to the performance of its functions and the
exercise of its powers, including the power to grant interlocutory orders or interdicts.’

to enforce a total prohibition on account closures. However, this is not how the order
reads. Nonetheless, I do not consider that it is necessary to make a finding on this
interpretational dispute. In my view, the question of appealability in this case does
not turn on whether the order is interim or final in effect. For the reasons set out
below, my view is that even if the order is interim in effect, it is appealable.

[15] As a matter of general principle, an appealable decision is one which is final
in effect and not susceptible to reconsideration by the court that granted it, is
definitive of the rights of the parties, and has the effect of disposing of at least a
substantial portion of the relief claimed in the main proceedings.3 It follows that,
ordinarily, an interlocutory interdict that operates pending the outcome of further
proceedings is not appealable.4 Orders of this nature do not usually satisfy the triad
of requirements for appealability mentioned above.

[16] However, these requirements do not constitute a closed list.5 Where a decision
does not dispose of all the issues in the case, s 17(1)(c) of the Superior Courts Act
10 of 2013 provides that leave to appeal may be granted if this would lead to a just
and prompt resolution of the real issues between the parties.6 In recent years, the role
of the interests of justice in determining whether an order is appealable has received
attention. This has resulted in judgments of this Court which could be said to differ

3 Zweni v Minister of Law and Order of the Republic of South Africa [1992] ZASCA 197; [1993] 1 All SA 365 (A);
1993 (1) SA 523 (A) (Zweni) at 536B.
4 Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others [2017] ZASCA 134; [2017] 4 All SA 605
(SCA); 2018 (6) SA 440 (SCA) (Cipla) para 36.
5 Cipla para 37.
6 See also DRDGold Limited and Another v Nkala and Others [2023] ZASCA 9; 2023 (3) SA 461 (SCA) (DRDGold)
paras 22-26.

in approach to this issue.7 Since, however, none of them deals with interim interdicts,
and the Constitutional Court has done so expressly, it will not benefit this judgment
to rehearse them.

[17] In United Democratic Movement and Another v Lebashe Investment Group
(Pty) Ltd and Others8 the Constitutional Court dealt with the application of the
interests of justice in an appeal relating to interim interdicts. This Court had struck
a matter from its roll on the basis that the order, which was an interim interdict, was
not appealable under the Zweni test. The Constitutional Court upheld an appeal
against that judgment.  It 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’.9 It found further that, in deciding whether an order is appealable,
this Court does not exercise a discretion but rather makes a finding of law.10 The
Constitutional Court concluded that the interim interdict in question was appealable
because it had resulted in the infringement of the right to freedom of expression.11
This Court is bound by that finding.

[18] In a matter where no case was made out for an interim interdict and the order
accordingly ought never to have been granted in the first place, along with other

7 See S v Western Areas [2005] ZASCA 31; 2005 (5) SA 215 (SCA) paras 215-216; [2005] 3 All SA 541 (SCA);
Philani-Ma-Afrika and Others v Mailula and Others [2009] ZASCA 115; 2010 (2) SA 573 (SCA); [2010] 1 All SA
459 (SCA); 2010 (2) SA 573 (SCA) para 20; Cipla para 37; DRDGold  n 5 paras 22-26; Road Accident Fund v Taylor
[2023] ZASCA 64; 2023 (5) SA 147 (SCA) para 26; TWK Agriculture Holdings (Pty) Ltd v Hoogveld
Boerderybeleggings (Pty) Ltd and Others [2023] ZASCA 63; 2023 (5) SA 163 (SCA paras 30; Knoop NO and Others
v National Director of Public Prosecutions [2023] ZASCA 141.
8 United Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd and Others [2022] ZACC 34;
2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC).
9 Ibid para 45.
10 Ibid para 40.
11 Ibid para 45.

relevant considerations, interests of justice might well render an interim interdict
appealable despite the Zweni requirements not having been met.12 An analysis of the
second issue in this appeal, namely, whether the respondents made out a prima facie
case for the interim interdict granted, demonstrates that this appeal is one of those
exceptional cases.

[19] The established requirements for an interim interdict in common law apply to
an application for interim relief in the equality court.13 The well-established
approach to interim relief requires the court to consider the facts set out by the
applicant, together with any facts set out by the respondent which the applicant
cannot dispute, and to assess whether the applicant should, on those facts, obtain
final relief in due course.14 The inquiry is fact-based. In the context of equality court
proceedings, this Court has emphasised that mere allegation or speculation as to an
infringement of the Equality Act will not suffice, and that an application may not be
based on ‘conjecture, perception and supposition’.15 This means that it is not
sufficient for an applicant to baldly aver that there has been unfair discrimination.  It
must adduce evidence of facts that objectively support the conclusion contended for.
In order to succeed the respondents had to make factual allegations to support a
prima facie case that Nedbank had discriminated unfairly against the respondents on
the basis of race when it closed the respondents’ accounts.

12 Old Mutual Limited and Others v Moyo and Another [2020] ZAGPJHC 1; [2020] 4 BLLR 401 (GJ); [2020] 2 All
SA 261 (GJ); (2020) 41 ILJ 1085 (GJ) para 103, endorsed in Eskom Holdings SOC Limited v Lekwas Ratepayers
Association NPC and Others; Eskom Holdings SOC Ltd v Vaal River Development Association (Pty) Ltd and Others
[2022] ZASCA 10; [2022] 1 All SA 642 (SCA); 2022 (4) SA 78 (SCA) para 7.
13 Manong and Associates (Pty) Ltd v Minister of Public Works and Another [2009] ZASCA 110; 2010 (2) SA 167
(SCA); [2010] 1 All SA 267 (SCA) (Manong) para 22.
14 Gool v Minister of Justice 1955 (2) SA 682 (C) 688D-E.
15 Manong para 30.

[20] The thrust of the respondents’ case was that there appeared to be a collective
effort among the banks to ‘unbank’ (the term used in the affidavits) the Sekunjalo
Group. Nedbank was one of several banks that had either closed bank accounts held
by entities within the Sekunjalo Group or had placed the accounts under review.
Although, like the other banks, Nedbank had cited reputational risks as the
underlying reason, the respondents cast suspicion on this explanation. The key
element of the respondents’ case for unfair discrimination was that Nedbank had
been selective in its assessment of which customers posed a reputational risk, and
that this selective assessment was based on the race of the entities in question.

[21] In support of this thesis, the respondents identified the Steinhoff Group
(Steinhoff), EOH Limited (EOH) and Tongaat Hulett Limited (Tongaat) 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 respondents asserted that these examples of what the respondents
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’. Consequently, Dr Survé stated in the founding
affidavit that ‘the [respondents] have taken the view that they are being targeted inter
alia, on the basis of race’.

[22] Of course, the respondents’ view or perception that it was being discriminated
against on the basis of race is not sufficient to establish a prima facie case. Their
case was expressly inferential. Consequently, they were required to adduce facts
sufficient to satisfy the equality court that the inference of unfair racial

discrimination they sought to draw from the facts was more plausible than the
alternative inference drawn from the facts averred by Nedbank in its defence to the
charge.16

[23] This means that the respondents had 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.

[24] There were fundamental inadequacies in the respondents’ case on each of
these aspects of the application. On the first, being the asserted race of the two
contrasted groups of customers, the respondents applied the racial designation of
‘white’ or ‘white dominated’ to Steinhoff, EOH and Tongaat without any underlying
factual basis to support that designation. In their submissions, the respondents
contended that the race profile of a company must be determined by considering
factors such as the racial composition of its senior management, its board of directors
and its beneficial shareholders. However, the affidavits filed in support of the
application were devoid of any reference to these factors, let alone an evaluation,
based on them, of the alleged ‘white companies’ identified.

16 Cooper v Merchant Trade Finance Limited [1999] ZASCA 97; 2000 (3) SA 1009 (SCA) para 7.

[25] Effectively, the respondents’ case rested on no more than an assumption of
racial designation. That assumption was insufficient to establish even a prima facie
case that Nedbank had treated the respondents, as black customers, differently from
white customers. The equality court compounded the problem by itself expressly
assuming, without deciding, that Steinhoff, EOH and Tongaat were white
companies. Having done so, it went on to decide the case on precisely this basis. It
misdirected itself in this regard by making this assumption in the absence of any
evidence to support it, and then proceeding to the next leg of the inquiry without
being satisfied that the respondents had discharged their onus on this, the
foundational element of their case. This, in itself, is decisive of the matter. The
necessary foundational element of racial identity had not been established.

[26] As to establishing a prima facie case that they were treated differently to other,
similarly situated, customers of Nedbank for racial reasons, the respondents
similarly fell short. Nedbank met the respondents’ case with an express denial that
its decision to terminate its relationship with the respondents was motivated by racial
factors. It went further and explained why it had not decided to terminate its
relationships with Steinhoff, EOH and Tongaat. These companies did not pose the
same reputational risk as the respondents. This was because, unlike the respondents,
they had all been restructured following the adverse findings against them; they had
acknowledged their past wrongdoing; those implicated had been dismissed or
resigned; new management was in place and other remedial actions had been
undertaken. In contrast, its interaction with the respondents demonstrated that they
had sought to downplay the seriousness of the Commission’s adverse findings and
comments directed at the Sekunjalo Group and Dr Survé. Further, a number of
Nedbank’s queries regarding account transactions had not been adequately
explained.

[27] It was inherent in Nedbank’s defence that the respondents and the other
entities were not similarly situated. There were material differences between them,
bearing no relation to race, that informed Nedbank’s decision to terminate its
relationship with the respondents and not with the other entities. The respondents
did not substantially dispute Nedbank’s explanation. Their case essentially remained
one based on their expressed perception that Nedbank’s conduct was racially
motivated. This is insufficient to sustain a prima facie averment of unfair racial
discrimination. Consequently, the equality court could not properly have found that
the respondents had discharged their onus of establishing a prima facie case of unfair
racial discrimination. It ought to have dismissed the application for this reason.

[28] Inexplicably, the equality court reversed the onus of proof. Relying on s 13 of
the Equality Act,17 the equality court found that Nedbank had not proved that its
conduct was not based on the prohibited ground of race. The application being for
an interim interdict, the court clearly misdirected itself in this respect. As this Court
confirmed in, Manong18 it was the respondents that bore the onus of establishing a
prima facie case of discrimination before Nedbank attracted an onus. They could not
do so based on mere perception of unfair racial discrimination and an inferential case
unsupported by facts. For the reasons already stated, it failed to clear that bar.

17 Section 13 deals with burden of proof. It provides, in relevant parts:
‘(1) If the complainant makes out a prima facie case of discrimination-
(a) The respondent must prove, on the facts before the court, that the discrimination did not take place as alleged; or
(b) The respondent must prove that the conduct is not based on one or more of the prohibited grounds.
(2) If the discrimination did take place-
(a) on a ground in paragraph (a) of the definition of “prohibited grounds” then it is unfair, unless the respondent proves
that the discrimination is fair. . . ’.
18 Manong paras 22 & 27.

[29] In sum, the respondents did not allege the facts necessary to make out a prima
facie case. The order of the equality court should not have been granted in the first
place.19 For this reason, it is one of those exceptional cases where, despite the interim
nature of the order, it falls within the appeal jurisdiction of this Court.

[30] There is an additional reason for this interim interdict being appealable. The
equality court found, albeit on a prima facie basis, that Nedbank’s decision to close
the respondents’ accounts was based on unfair racial discrimination. This is a serious
charge. Racism is a scourge which has infected the fabric of our national life for well
over three hundred years. The Equality Act was specifically devised, in part, to
address and eliminate this scourge. Any order under this section of the Equality Act
requires a finding that the entity against which the order is granted has unfairly
discriminated on the ground of race. A finding of that nature has obvious serious
reputational repercussions, particularly considering Nedbank’s standing as one of
the major banks in South Africa. Where a case is properly made out for an order
having this effect, a party cannot be heard to complain. However, where, as in this
case, the order ought never to have been made, justice requires that the impugned
decision is rendered appealable and rectified.

[31] It follows for this reason that the appeal must succeed. In the result, the
following order is granted:
1 The appeal is upheld with costs, including the costs of two counsel where so

employed.
2 The order of the Equality Court is set aside and replaced with the following

order:

19 Ibid para 22.

‘The application is dismissed with costs, including the costs of two counsel

where so employed.’

____________________
R M KEIGHTLEY
ACTING JUDGE OF APPEAL

Appearances

For the appellants:

A Cockrell SC with M Mbikiwa
Instructed by:

Edward Nathan Sonnenbergs Inc, Sandton
Mayet & Associates Inc, Bloemfontein

For the respondents:

V Ngalwana SC with J Moodley
Instructed by:

Adriaans Attorneys, Cape Town
Honey Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

18 December 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Nedbank Limited and Another v Mohammed Iqbal Survé and Others (Case no 160/2023) [2023] ZASCA
178 (18 December 2023).
Today the Supreme Court of Appeal (SCA) handed down a judgment upholding, with costs, an appeal
against the decision of the Western Cape Division of the High Court, Cape Town, sitting as the Equality
Court (equality court). The equality court had granted an interim interdict against the appellants,
Nedbank Limited and Nedbank Private Wealth Stockbrokers (Pty) Ltd (Nedbank), prohibiting them from
closing the bank accounts held by the respondents, being Dr Survé, Sekunjalo Investment Holdings
(Pty) Ltd and forty two entities associated with them. Nedbank was further directed to re-open those
bank accounts of the respondent that it had already closed. The order had effect pending the finalisation
of proceedings in the equality court arising from a complaint of unfair racial discrimination lodged by the
respondents.
Nedbank’s decision to review its banker-customer relationship with the respondents was triggered by
the Mpati Commission of Inquiry (the Commission) which was appointed in October 2018 to investigate,
report and make findings and recommendations on allegations of impropriety concerning the Public
Investment Corporation (the PIC). Its scope of inquiry included the relationship between the PIC and
certain companies within the Sekunjalo Group. The Commission concluded, among other things, that
there was ‘malfeasance’ on the part of the Sekunjalo Group, particularly in relation to the subscription
by the PIC for shares in Ayo Technology Solutions Ltd. Nedbank proceeded to review its banker-
customer relationship with the respondents. After interactions with them over several months, it gave
notice that it intended to close the respondents’ accounts. It cited, among other things, the reputational
risks to Nedbank of a continued banker-customer relationship with the respondent.
The respondents’ case was that Nedbank’s conduct constituted unfair discrimination based on race.
They pointed to the Steinhoff Group (Steinhoff), EOH Limited (EOH) and Tongaat Hulett Limited
(Tongaat), which had all been found to have been involved in fraudulent conduct, but whose accounts
Nedbank had not closed. Describing these companies as ‘white’ or ‘white dominated’, the respondents
averred that it was difficult to avoid the inference that the different treatment meted out to the Sekunjalo
Group, which was constituted of ‘black’ entities, was racially motivated.
The SCA found that although the interdict granted by the equality court was interim, and ordinarily not
appealable, this was one of those exceptional cases in which considerations of justice rendered it
appealable. The respondents had failed to make out the prima facie case necessary for the grant of an
interim interdict. Their case rested on no more than an assumption that Steinhoff, EOH and Tongaat
were ‘white’, with no factual averments to support it. That assumption was insufficient to establish a
prima facie case that Nedbank had treated the respondents, as black customers, differently from its
white customers. Therefore the necessary foundational element of racial identity had not been
established.

The respondents had also failed to make out a prima facie case that they had been treated differently
to similarly situated customers of Nedbank for racial reasons. Nedbank had explained the reasons why
its relationship with Steinhoff, EOH and Tongaat did not pose the same reputational risk as the
respondents. The explanation pointed to material differences between them bearing no relation to race.
The respondents had not substantively disputed this explanation. Their case was based on a perception
and inference of racial discrimination unsupported by the necessary evidence. This was insufficient to
sustain a prima facie case for relief. The SCA concluded that the order ought never to have been
granted in the first place.
The SCA held that there was a further reason that rendered the order of the equality court appealable.
The prima facie finding  by the equality court that Nedbank’s decision to close the respondents’ accounts
was based on unfair racial discrimination was a serious charge with reputational repercussions for
Nedbank. The SCA found that where a case is properly made out for an order having this effect, a party
cannot be heard to complain. However, where, as in this case, the order ought never to have been
made, justice required that the impugned decision must be appealable and rectified.

~~~~ends~~~~